Most workers are aware that if they suffer injuries in the workplace, or while performing work related duties, they are able to claim for workers’ compensation. This is usually for events causing physical injury, like injury to their back while lifting something heavy, or being in a car accident on the way to or from work.
However, psychiatric or psychological injuries in the workplace can also occur, such as when a person is being bullied or harassed, or they witness, or are a victim of, something traumatic like an armed robbery.
Over the past decade it has become increasingly difficult to establish a claim for a psychiatric or psychological injury in the workplace due to the provisions that were included in the Workers’ Compensation and Rehabilitation Act 2003. This provision was in effect a requirement that employment be the major significant contributing factor to the injury.
It was this word ‘major’ that has caused many injured workers’ claims to fail. In fact, during the period of July 2017 to June 2018, the rejection rate for psychiatric or psychological injuries was 64.7%.
Fortunately, on 30 October 2019 the legislation was amended to remove this word ‘major’, and now only requires the employment to have been a significant contributing factor.
The ordinary meanings of these words demonstrate the difference:
- Major: greater in number, quantity, or extent; prominent or significant in size, amount, or degree.
- Significant: having or likely to have influence or effect; probably caused by something other than mere chance.
However, the Act specifically excludes psychiatric or psychological disorders arising out of, or in the course of:
- reasonable management action taken in a reasonable way by the employer in connection with a worker’s employment;
- a worker’s expectation or perception of reasonable management action being taken against the worker;
- action by the Workers’ Compensation Regulator or an insurer in connection with a worker’s application for compensation.
A claim denied due to these exceptions does not suggest that a worker has not sustained a psychological or psychiatric injury, but rather that it is not compensable under the Act.
Examples of actions that may be reasonable management actions taken in a reasonable way include:
- action taken to transfer, demote, discipline, redeploy, retrench or dismiss a worker;
- a decision not to award or provide promotion, reclassification (or transfer of), leave of absence or benefit in connection with the worker’s employment.
Reasonable management action need not be perfect or above criticism. If management action is considered to have been reasonable, a claim cannot be deemed one for acceptance.
It is hoped that with this change it will now be easier for injured workers to have claims for psychiatric or psychological injuries accepted (for those injuries occurring on or after 30 October 2019).
If you have sustained an injury at work, it is important to lodge an application early. An application for compensation is valid and enforceable only if the application is lodged by you within 6 months after the entitlement to compensation arises, unless special circumstances arose to the satisfaction of WorkCover that prevented you from making the application within 6 months.
If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of WorkCover’s liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.
If you have the right to make a common law claim for damages, in Queensland, you have three (3) years from the date of injury or accident to file court documents or serve a compliant Notice of Claim for Damages or you will forever lose your right to make a claim.