Workcover Stress Claims – common questions

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Depending on the circumstances and the particular facts of your particular situation you may be able to claim workcover compensation if you suffer from severe stress in your workplace. However, as we have previously reported, stress claims can be -and often are- extremely challenging to prove and litigate.Set out in this article are the most frequent questions asked about workcover and stress claims.

Workcover stress claims are notoriously difficult. Many legal requirements need to be satisfied in order for the stress case/claim to be viable or successful. You (and/or your lawyer) will need to demonstrate that you have suffered an ‘injury’ within the meaning of the relevant WorkCover legislation in your state. This basically means that you can’t claim for experiencing or suffering stress (even severe stress) as an emotion. You need to be suffering from and be diagnosed with a known clinical medical condition.

Workcover Stress Claims – common questions

Can I make a workcover claim for stress?

Generally speaking, if your stress condition (clinical medical condition) is caused or aggravated by your work or workplace, then you may have a claim for workcover.

Let’s say for example, if you work as a policeman or police woman and have been physically threatened by a criminal during the course of your employment, and suffered severe stress (and a medical condition such as PTSD), then the source of the stress and the ensuing medical psychiatric/psychological condition is easy to identify. Same would apply to for example a paramedic who has been assaulted by a patient or bystander; or a bank worker who has been held at gunpoint by an armed robber.

In other words, where the source of stress is encountered or experienced in the course of employment (external or internal), and this stress has a profound impact on the person’s life, then these claims are likely to be accepted by workcover.

Illegal conduct by someone at your workplace such as sexual harassment, bullying or assault can also cause severe stress (and a medical psych condition) and claims based on these actions can also be brought forward

However, in cases where the conduct that gives rise to the stress is more subtle and not so easy to identify, it can be very difficult to establish a workcover stress claim.

What do I have to prove when making a workcover stress claim?

As outlined above, in order to make a successful workcover claim for stress, you will need to prove that you are suffering from a clinical medical condition which is classified as an ‘injury’.

A good indicator of whether you’re suffering from a medical condition is whether you are receiving medical treatment for your condition. If you haven’t sought or needed medical treatment for your stress condition, it will be extremely difficult (if not impossible) to establish and prove your case.

Seeking medical help for your work-related stress condition is extremely important. If you don’t do this as soon as possible, again, it will (often) be much more difficult to get your claim accepted. Besides, it is crucial that you seek medical help if you genuinely suffer from a stress related medical condition, such as severe depression, panic attacks, PTSD (Post Traumatic Stress Disorder) etc.

What happens if my stress claim is disputed by workcover?

The reality is that stress claims are more likely than any other type of workcover claim to be disputed (and rejected) by workcover (it’s agents/insurances). This is because there will inevitably be (very) different perceptions of the same circumstances by both the psychologically injured worker and his/her employers (who are the clients of the workcover insurer).

If your stress claim is rejected or disputed by WorkCover, there may be a couple of avenues to compensation depending on the facts and circumstances of your individual case. For example, in Victoria it may be possible to have your case referred to Conciliation and then to a medical panel.

Also, should you opt to go to Court, it can be very difficult for a Court to decide which “perception” of the “stress” is correct/more credible and this makes it very challenging to  predict the likely outcome of any court proceedings.

Needless to say that it is extremely important that you seek expert legal advise (and help) for your stress claim to make sure your rights are  protected while your case is in dispute.

What is the legal process for a stress claim?

Every case is unique, different and progresses at different speeds depending on the facts of your particular situation.

A fair representation of the workcover stress claim process in Australia and how to access compensation is illustrated below by Shine Lawyers:

stress-claim-legal-process-shine-lawyers

[Image by Shine Lawyers]

How does compensation get calculated for stress claims?

Depending on the nature of your stress claim, in most cases a monetary ($) value is placed on the gap between your predicted life path before the injury and your actual life path since the injury’. This is well illustrated by the following image, by Shine Lawyers.

stress-claim-compo-shine-lawyers[Image by Shine Lawyers]

 

How much compensation am I entitled to for my workcover stress claim?

The amount of compensation you may be able claim depends on your particular, individual situation. Once you have consulted a legal expert (such as Shine Lawyers) and they have considered your situation, you should be able to get a pretty good idea of your rights and entitlements and the compensation you may expect to receive.

It is very important that you seek expert legal advice before any WorkCover assessment (ie. for a permanent impairment assessment re the level of your psychiatric/psychological injury). It’s also important that you seek this expert legal advice before accepting any lump sum payment from a workcover insurer.

How long will a stress compensation claim take?

It will basically take as long as needed! And will depend on many factors, such as how complicated your case is, how complex your suffered injuries are, how difficult it is to prove that your stress is a medical condition as well as the relevant workcover laws in each state. Once a lawyer knows the ins and outs of your case they should be able to give you a reasonable idea as to the time-frames.

How much will it cost to make a stress related claim for compensation?

Most lawyers and firms (such as Shine Lawyers) will take on your case on a ‘No Win No Fee’ basis, which means that you will only pay our legal fees once your lawyer(s) win your case.

The legal costs themselves will obviously depend on the amount of work that is required to resolve your claim (ie. Court proceedings) and this is different depending on your individual circumstances and the complexity of your case.

Additional read

The Injured Workers Support Network (NSW) has recently published a good article entitled “Claiming Psychological Injury



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One Response to “Workcover Stress Claims – common questions”

  1. @Workcovervictims – one of the most valuable resources, must read, well done!

    Queensland View

    Preamble
    I’ve been working my way through Queensland system for some time with little success. I’ve had partial representation which I’ll go into later. In my case/s psychological personal injury (PPI) injury has always been recognised for multiple events over an extended period. The question has been access to evidence, the quality of evidence & how it has been interpreted. WorkCover & their Regulator in review has used that evidence selectively, sometimes with assumptions & relied on hearsay at times which has been extremely unfair. I am trying my absolute best to correct the imbalance & give truly stressed & mistreated workers a decent chance at proving their rightful claims in Queensland. I have involved, through complaint, the highest levels of government agencies to show inequity in system, short comings & just plain unfair process.

    Please support this worthy cause. I have been shunned by ex-co-workers while a selective few have been as supportive as they can be. There is a hideous nature of work environments where witness self preservation & possibly their own prejudice can hinder your chances at proving what actually happened & ‘not just your perception’

    In Queensland don’t be under any illusion the protection for employers written in the Act as ‘reasonable management action’ is hard to prove. So it doesn’t matter if you qualify as a ‘worker’ & have your ‘injury’ recognised if you are unable to prove the incident was unreasonable. In Queensland unlike mentioned above for Victoria there has been case law in Queensland Industrial Relations Commission (QIRC) which points out two defining points that seems to feature

    (1) You do not need to have a diagnosed condition under DSM-IV/V to have suffered an injury under the Workers Compensation & Rehabilitation Act 2003. It is sufficient to have a set of symptoms affecting your health. But it still follows that a medical practitioner is best to make observations & report.

    Question – would a Stat Dec outlining self assessment of symptoms be acceptable? I have heard that doing a Stat Dec is an acceptable alternative to Medical Certificate for claiming sick leave.

    (2) Recent changes mean that work needs to be the most significant factor not just a major part of personal injury (mental health). So to the circumstances of injury or injuries need to be a primary component of work. What this means, for example, is if the situation involves friends or family of a co-worker & work was the mere setting, back drop if you will, then there is a good possibility you do not have a claim for compensation.

    Another good example of this is in a recent case where a woman was unknowingly photographed in a sexual way by concentrating on private parts of the body. The Woman was informed by management after the fact. There after the woman was also dissatisfied with how management handled situation & subsequently made a claim for PPI injury that went to appeal. The lady was denied compensation because it was viewed by QIRC that while the injury was through being at work it was not a function of work. I can also generalise that had the injury been attributed to managements’ handling of matter as poor it may well have been viewed as a blemish or minor mistake that the decision makers (WorkCover/Regulator/QIRC) allow for. This covers systems of work or individual decisions if for example by inexperience or some degree of incompetence. Especially if management can show & not necessarily prove a reasonable attempt was made to address issue causing or involved in the sustaining of PPI.

    (3) Getting represented on a ‘no win no fee basis’ is at least in Queensland not that easy to obtain at an early stage of PPI injury claims which are rejected. Unless you obtain new compelling evidence. If the stressors are to be considered over time & need to be considered collectively this increases complexity & workload for legal professionals who will be reluctant to engage you on a speculative basis. You will need to go it alone or approach your union if you are a member. Unfortunately community legal services generally exclude personal injury as specialised & seen as sufficiently covered by existing private sector legal firms. This is a concern for low income workers who have a low level of education.

    This is the very harsh reality of being ill treated through work. It is hard to reconcile ‘the humanity’ in these sorts of systems & how ‘they are meant to catch workers when they are at their worst’ which was put to me by an Qld MP who got a briefing on WorkCover review not too long ago.

    To those that snub my ‘crusade’ as one put it, pray you don’t get injured & your ability to work is affected. Because you will get back what you have given… zip.

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    HardRockTuffNut May 8, 2015 at 2:39 pm