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