Claiming compensation for psychological injury can be very difficult and challenging.
Claiming psychological injury on WorkCover
Claiming compensation for psychological injury can be very difficult and challenging, as it is not (always) straightforward as you may think. You must meet certain complex and strict criteria. These include that you must suffer from a diagnosable psychological injury, you must be able to prove that work was/is a significant contributing factor and that there was NO reasonable management action. Sounds complicated? It truly is!
For example just being “stressed out” in your workplace is really not enough to lodge a workcover claim, let alone to have your claim accepted and receice weekly payments if you are unable to work due to your “stress”.
Complex and strict criteria in order to claim workcover for a psychological injury
1. You must suffer from a diagnosable psychological injury, at least a psych condition that can be recognised
In order to lodge a workcover claim for a psych injury, you really need to suffer from a psych condition that has been diagnosed properly by your doctor. When you fill out the workcover claim from, you need to but detailed information about the psychological or psychiatric injury (illness) you have suffered at work. This information must be your doctor’s diagnosis of your psych condition/illness. Your doctor should have written this diagnosis on youre certificate of (in)capacity. Writing that “you are stressed out”, or “having a nervous breakdown” (at work) is not enough, and yes, we do understand that this may sound vry harsh.
What’s worse is that workcover (their insurers) will send you to an independent medical examiner, which in this case would be a psychiatrist, to have your psychological injury assessed. Unfortunately, this examinations will include a painful re-hashing of your ordeal (for example re-living a trauma), and the IME will -likely- question your whole life “ad nausea”. Ask about your parents, family, siblings, whether your mom or dad are alcoholics, suffer depression, take drugs, are violent.. etc etc. Sometimes this inquisition can be very shocking as you, like may of us, may wonder what on earth your dad or your brother, or an incident that occurred when you were 5 years old, has to do with your current and real mental injury/illness caused at work. Often we hear (and have personally experienced) that an IME will dismiss your genuine PTSD, major depression, whatever and call it at best an “adjustment disorder”, which is – essentially- meaningless. They may even write that because your father was “violent”, you now have “anger” issues, or that you are suffering from major depression because it is in your family. It happens all the time. If the IME does not consider you have a “recognised.diagnosable injury”, despite what your own doctors or psychiatrist or clinical psychologist say, this is a reason for the workcover (insurer) to reject your claim.
As I mentioned ages ago, I was once assessed by an IME Psychiatrist “to assess whether I was fit for rehab”. At the time I had just undergone major surgery again, and was on 1 crutch and had 1 arm in the sling (I had my right leg hanstring transplated into my right shoulder). That surgery had just broken down (so the hamstring that was put into my shoulder had detached itself). I questioned my then case manager and asked her why I had to undergo an IME assessment with a psychiatrist, given that I was clearly unfit for anything based on my surgery, it’s complications and ample evidence from orthopeadic surgeons. Her reply was literally “I am not interested in your phsyical condition or deterioration, I need to have you assessed by a shrink to see if you can return to work and take part in rehab”. This is NO joke. When I underwent the IME with that psychiatrist she made me, of course, re-live all the traumas (assault at work which caused me to loose just about my entire R arm; a cardiac arrest with near death experience during that surgery etc etc), but the IME also asked a whole lot of questions about my family. In the IMEs report, it was stated that “I was depressed and upset because my elderly parent had not been able to visit me from overseas”(WTF), and that “my mother may have committed suicide” – WHAT!!!? She died in a car accident when I was 7 years old, and the IME assumed that it could have been suicide. How SICK is that? … So you can guess the outcome of that “report”. Thankfully this IME’s opinion was completely dismissed by a subsequent Medical Panel examination who found I had not only suffered a catastrophic physical injury but also suffered a primary psych injury (severe PTSD) and secondary Major Depression, all related to the accident (assault) at work. In other words, they will try hard to dismiss whatever genuine mental injury you may have and blame it’s cause to some “opinion”.
2. Your work was/is a significant contributing factor
This can be quite difficult to prove. Basically workcover must decide if your work is (or was) a significant contributing factor to your diagnosed psychological injury. It is even more difficult to prove if you have experienced a mental health issue in the past (even 20 years ago). The law essentially states that the court has to consider how long you have worked for your employer, the nature of your job (what kind of work you do/did), the tasks you had to perform at work, .. and even the likelihood of your psychological/psychiatric injury having occurred regardless of work, hereditary risks (this is where IMEs tend to jump on), your lifestyle (alcohol, drugs), and even your activities outside of work. Mmmh… see what we mean here?!
So, if you already suffered from a pre-existing psychological/psychiatric injury during your life time (and who hasn’t had one to some degree such as depression, anxiety, etc), and let’s say some “things” at work made it worse you must be able to clearly show that your work was a significant contributing factor to for example the aggravation, acceleration, exacerbation or deterioration of your pre-existing psych injury.
‘Significant’ means ‘of considerable amount of effect’. It is quite subjective and will depend on the details of your case.
3. Reasonable management action
This is the biggest loophole of all is the generic defence “reasonable management action”. In other words most claims for psych injury will fail because many will be found to be a result for “reasonable management action” taken by your boss/employer. What reasonable management action is and what it is not is very complex and blurry. We could write an entire website about it!
In a nutshell, reasonable management action involves your employer to show that its management action was taken on reasonable grounds and in a reasonable manner; and that, if your employer is successful in showing it acted reasonably, you (the injured worker) must then prove that your injury was not caused completely or predominantly by the management action of your employer. Sounds complicated: it is!
When you fill in your claim for workcover for a psych injury, apart from writing your diagnosis (eg, PTSD, Major Depression ehatver) make sure you explain in writing, and as detailed as possible which stressors at work cause your psych injury/illness. Use extra pages if you need. This may be very helpful to see and identify whether there was any unreasonable management action, and if there were any other stressors which cause your mental injury (outside of managment action).
If your claim is rejcted by workcover, don’t panic as yet, as you can dispte the issue at Conciliation (in VIC), and possibly even a Medical Panel.