Stress claims and reasonable administrative action in the workplace

stress-claims-workcover

Further to our article entitled “The chameleon-like nature of reasonableness in the context of stress claims“which covers what reasonable management action carried out in a reasonable manner’ actually means, and which provides several illustrative case samples; we’re still being flooded with emails from injured workers who seek some (legal) advice after having developed quite serious psychological problems as a result from ‘stress’ at work in the form of bullying, harassment, victimisation, work overload etc. This article tries to summarise the essence of how to lodge a workcover claim for stress and what ‘reasonable administrative action in the workplace’ is.

Stress claims and reasonable administrative action in the workplace

We continue to receive daily emails and inquiries from (injured) workers seeking legal and/or workcover advice after developing significant psychological issues as a result of workplace bullying, harassment and/or victimisation. Some develop psychological problems because they believe they have unreasonably been denied a promotion (or other) and some are so overloaded with work they simply can no longer cope.

Unfortunately, no one is safeguarded to the -at times- terrible consequences that can result from these workplace issues/stressors, and quite a few workers also develop diagnosable psychological illnesses/problems such as anxiety, depression, ‘adjustment disorders’ and even Post Traumatic Stress Disorder (PTSD).

While some workers recover without the need to see a psychiatrist or psychologist, or simply by being removed from the bully/perpetrator, other workers develop worsening mental condition(s), which become so severe that it renders them totally (or in part) unable to work and perform their duties.

Lodge a workcover claim

We do believe that if a worker needs to take time off work and/or seek medical treatment (i.e. GP, psychologist, psychiatrist) as a direct result of the workplace induced ‘stress’ (i.e. bullying, harassment, victimisation, etc. ) they should consider lodging a workcover claim, which would entitle the mentally injured worker to payment (and/or reimbursement) for all their reasonable medical expenses, and payment of  weekly payments during their period of incapacity for any work.

A successful workcover claim

What many ‘stressed’ workers don’t know is that- in order to have a successful workcover claim (that is have your stress claim accepted), they firstly need to prove that they have a recognised, diagnosable psychological and/or psychiatric condition/illness. Simply being ‘stressed’ is not enough to successfully lodge a workcover claim!

Provided you have been diagnosed with a recognised psychological/psychiatric illness/condition, the (injured) worker must also prove that work was a ‘substantial or significant cause‘ of the development of the mental illness/ condition. This is NOT (always) as straightforward as you may think! Very often the (injured) worker’s workcover insurer and/or their employer (oh yes!) will argue that the cause of the worker’s mental condition was caused by (any) other “stressor” in the worker’s life and- as such -that work was NOT the substantial or significant cause of the worker’s psychological/psychiatric condition!

For example, if the ‘stressed’ worker fairly recently (1-3 years!) lost a family member/loved one, or went through a divorce/separation, the argument will be made that work was not a substantial/significant cause of the mental illness. The same applies if the worker suffered any other form of ‘stress’ in their live, and they will scrutinise just about the worker’s entire life, including childhood and ‘personality’ traits.  The favourite way to accomplish this is by sending the worker to a well known biased “independent” medical exam.

But even in case the injured worker is suffering from a psychological/psychiatric condition/illness and work was a substantial cause of the illness, the employer and/or workcover may then rely on the defence that the condition illness resulted from ‘reasonable administrative action taken in a reasonable manner’.

So basically, if it can be shown (and they will try very hard) that the injured worker’s condition/illness resulted from “reasonable administrative action taken in a reasonable manner”, the workcover claim will fail.

Workcover claims involving psychological injury are definitely the most difficult due to this typical legal defence.

Compensation is generally not payable to an injured worker if an employer reasonably transfers, demotes, disciplines, redeploys, retrenches or dismisses a worker. For example, if a worker becomes depressed because they were allegedly reasonably disciplined by their supervisor/boss for often arriving at work late, they would not have a claim.

Compensation is also generally not payable to an injured worker if the employer makes a decision (based on alleged reasonable grounds) not to award or provide a promotion, reclassification or transfer or other benefit in connection with the (injured) worker’s employment. Even, if a worker strongly believes they are/should b entitled to a promotion, but did not receive one, and the employer acted (allegedly) reasonably, their workcover claim will likely fail. It is said the workcover system would not be able not cope or deal with the vast numbers of stress related workcover claims that may result from workers “upset” from not being awarded a promotion, reclassification or transfer or other benefit in connection with the (injured) worker’s employment.

Whilst the “reasonable administrative action” defence is extremely heavily relied upon by workcover insurers and employers to reject “stress” claims, the scope of this exclusion is actually quite narrow. What’s important to know is that this exception applies to “reasonable action taken in a reasonable manner“.

This basically means that an injured worker’s stress claim will usually succeed if “reasonable action is taken in an unreasonable manner”. Furthermore  a stress claim will usually also succeed if “unreasonable action is taken in a reasonable manner“.

It is very important to look at the entire history of workplace events/stressors to see if any of the actions were unreasonable, or whether the manner in which the actions were taken was unreasonable. For example, quite often a decision to discipline or even dismiss a (injured) worker is the last stage in a long and complex history of chronological workplace events.

So, let’s say, a decision to dismiss a worker for “poor performance” may seem entirely reasonable, when looked at on its own; but if the (stressed) worker’s poor performance was due to months or even years of mismanagement, unreasonable work demands/work loads, etc, the worker could have a perfectly legitimate workcover claim for their psychological injury.

Likewise, a worker may be legitimately disciplined for incorrect/dangerous use of machinery/breach of OH&S, and this discipline might cause a mental illness to this worker. But, if, this worker has never been properly trained in the use of the machinery /OH&S , (i.e. after repeated requests for training) , they would likely have a legitimate workcover claim.

If you believe you are suffering psychologically/mentally as a direct result of workplace stresses, you should see  your doctor immediately, and consider lodging a workers compensation claim.

 Summary

Many psychological cases, such as a claim for work-induced stress, are notoriously hard to win, especially without a workers compensation lawyer. It can also be quite hard to find a lawyer who is willing to take  on your case, since the chance of winning are generally quite poor (and the lawyer will only get paid if you win your case).

The chances of winning a permanent impairment lumpsum or even a disability award is even more difficult, since workcover insurers will expect you to recover after you left the job, or after a few months. So it is that in many cases, the most you could reasonably hope for is to get compensated for your medical expenses (treatment paid for) and some temporary weekly pay benefits to replace your lost wages while you take some time off work.

 

[Post dictated by WCV and manually transcribed on behalf of WCV]

 



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4 Responses to “Stress claims and reasonable administrative action in the workplace”

  1. Bit of info to watch out for anyone that has stress claim….its not only lawyers that dont want to touch stress claims, so now do doctors.

    My GP is at large medical practice in SE suburbs of Melbourne and about 6 months ago I noticed they had a sign up in their reception stating they no longer are able to see patients for workcover claims for stress/psychological conditions and kindly asked that such patients attend another medical practice.

    But they will see patients for workcover claims for physical injuries.

    I have a back injury so it doesnt effect me but I was surprised to see this sign.

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    • Which large medical practice in SE suburbs are you referring too? you can say the name.

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  2. I would also like to add that in Queensland reasonable management action extends to include all management action matters in the workplace, not just issues to do with pay, promotion etc see section 32 (5) of the act and the relevant case law decisions.

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    • I would add that in Queensland, non psychological Workers Compensation claims are accepted on the basis of “no fault ” on the part the employer, EXCEPT for psych injuries pursuant to section 32 (5) of the act which subjects a claimant to proving fault (negligence) on the part of the employer in order to have their claim accepted.
      Accordingly, this part of the legislation is a bias fault based workers compensation claim process, to the detriment of psychologically injured workers. Effectively, it places the greatest burden on the psychologically injured claimant to prove their employer has been negligent in some way to have their claim excepted, when it is not required with other non psychological injuries. The employer faced with allegations of unreasonable conduct said to have caused the injury will fight tooth and nail to prove they did no wrong and keep their premiums to a minimum, with little regard to the welfare of the injured worker.
      This draconian legislation needs to be repealed and a no fault system of compensation put in place to assist all injured workers, instead of aiding and abetting the employer to sabotage workers compensation claims by false and misleading conduct, that only adds to further psychological damage and a delayed recovery of the injured worker.
      I

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