An employers’ guide to managing psychological injuries
In our legal practice, we’re seeing a growth in workplace psychological injury claims. This article will help you understand psychological injury claims and guide you through the process.
WorkCover Queensland data shows mental health injury claims are made because of work pressure, bullying and harassment, violence, racial or sexual harassment, or because a person witnessed a traumatic event.
What does the legislation say about psychological injuries?
Psychological injury claims are different and they need to be managed differently. Their difference is acknowledged in the Workers’ Compensation & Rehabilitation Act 2003 Qld (“the Act”) which determines if a mental health condition is compensable.
Under the legislation:
A mental health injury will only be compensable if it arises out of, or in the course of employment, and if the worker’s employment is a significant contributing factor. This provision also applies to physical injuries but its consequences are more significant in mental health injury claims which are often multifaceted and can arise due to complex, overlapping and intertwined factors like a history of mental health issues, other financial and lifestyle stressors occurring outside of work and/or a vulnerability to this type of condition.
Mental health injuries are excluded from compensation if they are a result of reasonable management action taken in a reasonable way, or a worker’s expectation or perception of reasonable management action.
There is also a rise in mental health injuries which occurs as a consequence of a physical injury – stress due to financial hardship, social isolation and loss of identity from not working, or managing pain during the recovery process.
Mental health injuries are usually more complex. Whether a “primary” psychological injury or “secondary” psychological injury, responding to these types of injuries is more difficult for employers, insurers and even the worker’s own legal representatives.
The basis of the claim and allegations are often emotionally charged, adding to the complexity. Workers are sometimes motivated to bring a claim for reasons very different to the actual injury.
So, what happens if one of your workers make a claim for a psychological injury?
Psychological injuries investigation
If an allegation of bullying, harassment or overwork is made in your workplace, it’s important you undertake an early and thorough investigation. Unfortunately, many jobs have some level of inherent stress. There will always be staff conflict when different people work together and sometimes a work role involves witnessing or dealing with traumatic events.
An employer’s reaction, for example, to an internal workplace conflict doesn’t need to be perfect but it needs to be timely and responsive. It should show that once the issue was brought to the employer’s attention, the employer took appropriate steps to investigate, address and resolve that concern. It might be this investigation shows the mental health injury does not have a sufficient connection to the workplace or arose out of reasonable management action. If a problem is identified, the issue needs to be addressed.
Psychological injuries claim process
A worker, who sustains a mental health condition which falls within the definition of “injury” under the Act, is able to make a claim for statutory compensation. An employer who has any issues with the claim should raise this with WorkCover during their first discussion, so it can be considered further – particularly if they believe it is an excluded “injury” because employment was not a significant contributing factor or the mental health injury arose from reasonable management action.
If a claim is accepted, WorkCover will provide the injured worker with required medical services and possibly, weekly payments until they can return to work. Studies show that a worker’s recovery is always assisted if they can return to work. This can be difficult in mental injury claims, particularly where a workplace can be the cause of that worker’s distress, but if appropriate, steps should be taken to remain in contact and engaged with that worker to support them in their recovery. This may prevent the claim from progressing further by assisting the worker to heal and recover.
If a common law claim eventuates, WorkCover will appoint a lawyer to act in response to the claim. The focus of a common law claim is very different to the initial statutory claim made by the injured worker (as discussed above). The employer will be served with a Notice of Claim seeking a significant sum in damages and listing the grounds on which the injured worker believes the employer was negligent. This can be quite confronting.
The WorkCover lawyer will contact the employer to discuss the claim and undertake further investigations. This will include looking into the circumstances around the incident as well as obtaining relevant medical evidence and speaking to co-workers and other witnesses.
Unsurprisingly, this can all be very daunting for employers, particularly when added to the mix of managing a business day-to-day. There is no doubt the process is also daunting for an injured worker.
Psychological injuries resources
If you are responding to a mental health injury or looking at better ways to manage a potential risk in this area there are resources available to assist you including:
Safe Work Australia’s The Model Code of Practice: Managing psychosocial hazards at work
WorkSafe Queensland also produces a webinar series in conjunction with WorkCover Queensland: