A worker’s mental health can be adversely affected by exposure to a range of hazards and/or factors which can lead to long-term psychological injuries such as depression and anxiety.
According to the Australian Institute of Health and Welfare, 45 per cent of Australians aged between 16 and 65 will experience a psychological health disorder in their lifetime.
Such injuries/illnesses can be caused by stressors in the workplace (e.g. bullying) or may be a secondary consequence of a physical injury sustained within the workplace.
Can I receive workers compensation if I have a psychological injury/mental injury?
Although making a claim for a psychological injury sustained within the workplace can be more complex than making a claim for a physical injury sustained within the workplace, it is possible to access entitlements under the WorkCover scheme for psychological injuries.
The law defines a mental injury as being one that:
- Causes significant behavioural, cognitive or psychological dysfunction; and
- Has been diagnosed by a medical practitioner (GP or psychiatrist) in accordance with the Diagnostic Statistical Manual of Mental Disorders (‘DSM’).
The mental injury must have also been predominantly caused by or arisen out of the course of the worker’s employment.
Certain exclusions do apply, however, which can make the law complex.
Is it possible to have both a physical injury and a psychological injury?
Yes. A person can develop a psychiatric or psychological injury as a result of a physical injury. These symptoms and conditions can be accepted as part of a worker’s WorkCover claim.
What counts as a psychological injury in Victoria?
In Victoria, there are certain circumstances that may entitle a worker to compensation for sustaining a psychological injury.
Some circumstances include:
- Bullying, discrimination and harassment in the workplace
- Exposure to traumatic events
- Exposure to vicarious trauma
- Consequential psychological injury due to a physical injury.
Why are psychological injury claims so difficult?
The symptoms and treatment of physical injuries/conditions tend to be more visible and tangible, compared to those of psychological injuries/conditions. Unlike with a back or shoulder injury, a worker with a psychological injury cannot obtain radiology to prove that they have suffered a psychological injury/condition.
It can also be difficult to separate out the consequences of the psychological injury caused by employment, as opposed to other factors (i.e. pre-existing psychological conditions).
This, combined with the recent legislative changes outlined below, makes psychological injuries particularly difficult to prove which can therefore limit a worker’s entitlement to compensation.
In order to increase the likelihood of your psychological injury claim being accepted, your case may be strengthened by:
- Seeking medical treatment as early as possible from when your symptoms first occur
- Keeping a written record of all circumstances and/or incidents (including correspondence with your employer) regarding any contributing factors to your psychological injury
- Speaking with colleagues who may have witnessed the events or circumstances you say contributed to your injury and asking them to provide a helpful statement in support of your WorkCover claim.
The doctor said that it is too difficult to lodge a worker's compensation claim for a psychological injury. What should I do?
While we acknowledge the challenging nature of the worker’s compensation regime, a person with a work-related psychological injury/condition may still be entitled to ‘no fault’ benefits (i.e. medical and like expenses and weekly payments of compensation). We therefore encourage all people with a psychological injury caused by work to seek advice as to whether they are entitled to compensation under the WorkCover Scheme.
Read our articles on the types of WorkCover compensation available and why you should speak to a lawyer when making a WorkCover claim for more information.
Lodging a claim for a work-related psychological injury
It is important to notify your employer if you developed a psychological injury at work and seek medical attention as needed, as soon as possible. In some cases, you may also lodge a claim for workers’ compensation by following the three steps below:
1. Fill out a Worker’s Injury Claim Form
Fill out a Worker’s Injury Claim Form and make note of how your injury is work-related. If your condition came on over time, write this on the claim form instead of a specific date.
If you wish to seek weekly payments of compensation to compensate you for your time off work, you must also obtain a Certificate of Capacity from your GP. The first Certificate of Capacity can only cover a period of 14 days, and each Certificate thereafter is valid for 28 days. Certificates can be backdated up to 90 days where needed
2. Lodge the Worker’s Injury Claim Form with your employer
Once your Worker’s Injury Claim Form is lodged with your employer, the WorkCover Insurer has 28 days from the date they receive your claim to decide whether to accept it or not.
3. Attend an independent medical examination
During the 28 day period, the WorkCover Insurer may arrange for you to be examined by an independent medical examiner (i.e. a psychiatrist) to verify your injury and whether it is work-related.
The WorkCover insurer may also appoint an independent private investigator to speak to you, your employer and any witnesses to obtain details surrounding how your injury occurred. Should they do so, you are not obligated to provide a statement, and it is recommended you obtain legal advice prior to doing so.
If your claim is ultimately accepted, you may be able to claim medical and like expenses, weekly payments of compensation for your time off work, a permanent impairment benefit, compensation for your pain and suffering and/or loss of wages.
What happens if my claim is rejected?
Whilst sometimes claims can be relatively straight forward, it can be a rude shock when the WorkCover insurer rejects a claim lodged and the injured person is left without payment for the medical expenses and time off work.
There are a number of reasons why a claim might be rejected. For instance, there may be medical disputes or factual disputes that need to be challenged.
Furthermore, on 31 March 2024, a number of legislative amendments were introduced into the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). These changes will have a significant impact on workers who have suffered a psychological injury at work. For more information on these changes, please refer to Changes to WorkCover laws by the Workplace Injury Rehabilitation and Compensation Modernisation Act 2023.
Due to above legislative changes, some of the most common reasons for rejection include the following:
Satisfying the definition of a “worker”
You must be a worker to claim WorkCover compensation. Sub-contractors, or those who cannot clearly identify whether they are an employee may wish to seek legal advice to determine whether they satisfy any of the tests.
Satisfying the legal eligibility criteria of “mental injury”
Under new legislation introduced on 31 March 2024, in order to be accepted under a WorkCover claim, a mental injury must:
- cause significant behaviour, cognitive or psychological dysfunction; and
- be diagnosed by a medical practitioner (GP or psychiatrist) in accordance with latest Diagnostic Statistical Manual of Mental Disorders.
If you do not satisfy both of the above criteria, your claim will be rejected.
Satisfying that employment was the "predominant cause" of your mental injury
Under the new legislation, workers who sustain mental injuries on or after 31 March 2024 must prove that their employment was the “predominant” cause of their injury.
In other words, employment must be the “strongest or largest contributing factor” to the mental injury.
In cases of a pre-existing psychological injury that has been aggravated by employment, employment must be the predominant cause of the aggravation.
If your employment is not considered to be the predominant cause of your mental injury, your claim will be rejected.
Cannot be caused predominantly by work related stress or burnout
Under the new legislation, mental injuries sustained on or after 31 March 2024 will not be accepted under WorkCover if the predominant cause of the injury was work related stress or burnout resulting from events that are considered typical or reasonably expected in the worker's duties.
This new law does not exclude:
- Mental injuries caused by bullying, harassment and discrimination
- Mental injuries caused by traumatic events that are usual or typical and reasonably expected in the course of the workers duties
- Stress or burnout injuries sustained prior to 31 March 2024.
Reasonable management action
There is no entitlement to compensation for a psychological injury that is caused wholly or predominately by management action found to have been taken on reasonable grounds and conducted in a reasonable manner. This can include things such as:
- performance reviews
- counselling
- transfers
- disciplinary meetings
- investigation into alleged misconduct
- suspensions
- reclassifications
- dismissal
- redeployment.
If you have suffered a mental injury at work, it is important to seek legal advice at an early stage. We recommend seeking legal advice and assistance prior to lodging your WorkCover claim. Contact our advice line on (03) 9321 9988 or submit an online enquiry to speak directly to a member of our legal team.
