Making a Workers’ Compensation Claim for Psychological Injury

Making a Workers' Compensation Claim for Psychological Injury

Workers who suffer work related psychological injuries can recover substantial workers compensation and damages payouts, if successful. However, these claims can be difficult to prove and there are pros and cons for individuals to consider, when making a claim in Queensland.

Common causes of psychiatric injuries in the workplace

Workplace psychiatric injuries can arise in many ways. Some examples of events which lead to workers’ compensation claims for these injuries are:

  • Bullying and harassment
  • Excessive workload
  • A lack of relevant training
  • Toxic managers
  • A lack of procedural fairness or natural justice
  • Breach of workplace policies, workplace health and safety legislation or industry standards
  • A traumatic work related event

What is a psychological injury in the workplace?

In Queensland, in order to establish an entitlement to workers’ compensation benefits a worker must prove that they have suffered a psychiatric illness or psychological disorder. 

The presence of psychological symptoms or stress, without a diagnosis is insufficient.  A worker must prove that they have experienced a recognised psychiatric illness. 

Examples of workplace psychiatric and psychological injuries

Some examples of psychiatric disorders which may arise out of employment include:

  • Adjustment Disorders
  • Major Depressive Disorder
  • Post-Traumatic Stress Disorder
  • Substance-Related and Addictive Disorders

How to prove a psychiatric or a psychological disorder

To prove a psychiatric or psychological disorder, a worker will require medical evidence.  Evidence should be obtained from health care professionals with specialised experience in diagnosing these conditions. 

Generally, evidence from a psychiatrist or a psychologist will be required and given greater weight by WorkCover / self-insurers over a report from a general practitioner.  In workers’ compensation claims, the worker bears the onus of proving that they have suffered an injury.

How to make a successful claim for a psychological injury

To make a successful workers’ compensation claim for a psychological injury, an individual must prove they suffered an injury which arose out of, or in the course of their employment.

The worker’s employment must be a “significant contributing factor” to the injury. The Act provides an inclusive definition of the word injury. Injuries include aggravations of pre-existing injuries and that is useful for workers with pre-existing mental illness.

A psychiatric or psychological disorder will not be considered an “injury” for the purposes of the Act where it arises out of:

  • reasonable management action
  • a worker’s expectation or perception of reasonable management action
  • action taken by WorkCover, a self-insurer or the Workers’ Compensation Regulator relating to the worker’s application for compensation.

The Act provides examples of what is “reasonable management action taken in a reasonable way”. Reasonable management action includes actions taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker. It also includes actions to not award promotions, or other benefits connected with the worker’s employment.

If the worker’s employment was a significant contributing factor, then to reject the claim, the insurer must be satisfied that the reasonable management action of the employer displaces a view that the claim should be one for acceptance.  If a worker can establish that, on balance, the injury did not arise out of reasonable management action, then the claim should be one for acceptance.

Due to the threshold that a worker must reach to achieve acceptance of a workers’ compensation claim for a psychological injury, it’s fair to say that scheme generally requires some wrongdoing on the part of an employer for a worker to access statutory benefits.

How successful are claims for psychological injuries in Queensland?

Workers who suffer from psychiatric or psychological work-related injuries face difficulties when applying for support through WorkCover or self-insurers compared to those who suffer physical injuries.

This is because workers with physical injuries do not face the same onerous statutory test.  The scheme positively discriminates in favour of physically injured workers. Physically injured workers are not required to prove that their injury did not arise out of reasonable management action. They need only prove that their injury arose out of or in the course of their employment and that their employment was a significant contributing factor to the injury.

According to the Queensland workers’ compensation scheme statistics published in 2019-2020, 5.9% of WorkCover claims were for pure psychiatric injury. WorkCover rejected 54.4% of these claims and rejected only 7.4% of cases overall. However, it should also be noted that the Workers’ Compensation Regulator overturns approximately 25% of the decisions made by insurers, upon review.

How to challenge a rejected claim

If a workers’ application for compensation is rejected by the workers’ compensation insurer, they can seek a review of that decision. A review may be submitted to the Workers’ Compensation Regulator within three (3) months of receiving the insurer’s written reasons for the decision.

A worker may provide the Workers’ Compensation Regulator with new medical and factual evidence in support of their claim. The Regulator then reviews the matter and is authorised to confirm, set aside or substitute the original decision. 

Can I get my medical expenses paid?

As of July 2020, Queensland workers’ compensation insurers must take all reasonable steps to provide reasonable support to workers suffering psychological symptoms, while they are determining whether the claim should be one for acceptance.

This does not include fees for hospitalisation or weekly wage compensation. It does, however, allow an individual to receive treatment that was previously unavailable through the scheme until a claim was accepted.

Workers can also seek funding for their treatment elsewhere, for example, through a mental health plan prepared by their general practitioner or through private health insurance (if held).

Workers wait an average of 32 days in Queensland for their psychological or psychiatric claim to be determined. It is beneficial to receive treatment as soon as possible; delays do not assist the worker’s mental health and early intervention is key to optimal recovery outcomes.

Post-traumatic stress disorder compensation: first responders and other eligible workers

As of 20 May 2021, the Workers’ Compensation and Rehabilitation Act 2003 (Qld) was amended to provide first responders and other eligible workers access to workers’ compensation benefits, where they experience ‘traumatic incidents’ in their work. 

Where these workers are diagnosed by a psychiatrist with post-traumatic stress disorder (PTSD) in accordance with the diagnostic criteria provided under DSM5, the PTSD is taken to be an injury for the purposes of the legislation provided that:

  1. the PTSD arose out, or in the course of, the worker’s employment; and
  2. their employment was a significant contributing factor to the injury, 

thereby avoiding the reasonable management action test applicable to other workers. 

Workers who can access these entitlements include:

  • Ambulance officers
  • Triple zero call centre operators
  • Authorised officers under the Child Protection Act 1999 (Qld)
  • Corrective services officers
  • Fire service officers
  • Members of the State Emergency Service or an emergency service unit
  • Members of the rural fire brigade
  • Police officers
  • Youth justice staff members
  • Doctors or nurses employed in emergency and trauma care, acute care, critical care and high-dependency care
  • Qualified mine rescue workers

Challenges faced by workers who make claims

Over half of all workers’ compensation claims for psychiatric and psychological disorders in Queensland are rejected by insurers, at first instance.

The claims process is stressful for workers. They are poor advocates for themselves because they are unfamiliar with the claims process and particularly vulnerable due to their mental state. The stress caused by the claims process is not connected with a worker’s employment and it is not, of itself, compensable under the Act.

Psychological and psychiatric injuries are often complex and may involve many workplace interactions over a period of time. It is necessary for medical experts to identify the main stressors which caused a worker’s injury.

The worker must then prove that the stressors do not displace a view that the claim should be one for acceptance. For example, on balance, the relevant stressors are reasonable management action, then the claim may be rejected.  The temptation to adopt a scatter gun approach and make every workplace interaction relevant to the claim often unnecessarily complicates a case and results in claim rejection.

Can I lose my job due to mental illness?

Under the Act, individuals with accepted claims for psychological injuries are protected workers.  This means that an employer cannot dismiss a worker by reason of their injury for a period 12 months of their injury.

Queensland employers face a penalty of up to 40 units under the Act for dismissing a worker due to their injury.

Individuals suffering from a psychological injury may also be concerned that a claim could impact their future job prospects in their chosen career. For people in this situation, it is necessary to weigh the benefits of pursuing compensation and damages, against the potential impact to their career. This is also a relevant consideration in quantifying their damages in any common law claim. That is, this may justify a higher assessment for future loss of earnings.

What are the workers’ compensation payouts for psychological injuries?

Once a worker’s statutory claim is accepted, a worker will be entitled to statutory benefits under the Act.  The statutory benefit payouts include:

  • Weekly wage compensation – up to $349,734 (216.5 x $1,615.40 (Queensland Full Time Adults Ordinary Earnings as published by the Australian Bureau of Statistics as at 1 July 2021)
  • Lump sum compensation – up to $349,734
  • Medical and hospital expenses

How long do I have to claim for an injury at work?

Strict time limits apply in relation to claims for workers’ compensation.  An application for statutory benefits should be submitted to WorkCover or the relevant insurer within six (6) months of first seeking medical treatment for the injury.

Workers who have not submitted a claim within that timeframe may still be entitled to seek compensation. However, it is recommended that those individuals seek legal advice regarding their entitlements and the claims process, so as not to prejudice their interests.

Common law claims for psychological injury

A worker with an accepted claim for statutory entitlements, can also access workers’ compensation common law damages, provided they have not accepted a lump sum offer for an injury assessed with a degree of permanent impairment of less than 20%. 

Common law damages payouts include:

  • General damages – up to $385,770
  • Past and future loss of earnings – up to three (3) times x $1,615.40 (Queensland Full Time Adults Ordinary Earnings as published by the Australian Bureau of Statistics as at 1 July 2021)
  • Lost superannuation benefits
  • Treatment, medication, surgery, hospital and travel costs

Other heads of damage are also recoverable in common law claims and are assessed specific to the facts and available supporting evidence in each case, as well as applicable case law and statutory limits.

As the effects of a serious psychological injury can be lifelong, common law payouts in psychological injury claims can be significant. For a FREE 1 hour initial consultation and case assessment of your potential common law claim, call (07) 3067 3025

What is the limitation period for a common law workers’ compensation claim?

three (3) year general limitation period applies in common law workers’ compensation claims for damages.  This means that a worker must lodge a Notice of Claim for Damages with WorkCover/the self-insurer and the employer, within three (3) years of the date of their injury.

The three (3) year limitation period can be extended in a number of circumstances and these include:

  1. If a worker is provided a Notice of Assessment over 2.5 years from the date of their injury, then the time limit is extended by six (6) months from the date on which the Notice of Assessment is given.
  2. If a worker disagrees with the degree of permanent impairment contained in the Notice of Assessment referred to in paragraph (1) above, then the time limit is extended by six (6) months from the date on which the a Medical Assessment Tribunal decides the degree of permanent impairment.
  3. If a worker requests a permanent impairment assessment no more than three (3) years from the date of their injury and the insurer fails to issue a Notice of Assessment before the date three (3) years from the date of the injury, then the time limit is extended by six (6) months from the date on which the insurer gives a Notice of Assessment.
  4. If a worker disagrees with the degree of permanent impairment contained in the Notice of Assessment referred to in paragraph (3), then the time limit is extended by six (6) months from the date on which the Medical Assessment Tribunal decides the degree of permanent impairment.
  5. If the question of claim acceptance is the subject of a review or appeal and the claim is accepted more than three (3) years from the date of the injury, then the time limit is extended to six (6) months from the date on which the claim is accepted.

How long does it take for a common law claim to settle?

Common law claims for workers’ compensation can resolve within nine (9) months of their commencement. However, there are a number of different factors which can impact upon the duration of a common law claim, including:
  • the attitudes of the parties; 
  • the issues in dispute; 
  • how quickly each side can prepare their case; 
  • the stage at which the matter is finalised. 

How we can help

Denning Insurance Law represents Queensland workers in common law claims for psychiatric injuries. Book a FREE one (1) hour initial telephone consultation with Accredited Personal Injury Law Specialist and Principal, Kate Denning for advice and guidance with:

  • What happens at the end of your statutory workers’ compensation claim 
  • Appearing before the Medical Assessment Tribunal
  • The common law claims process
  • Proving negligence in a common law claim
  • Your potential common law damages