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PSYCHOLOGICAL INJURIES AND REASONABLE MANAGEMENT ACTION

By Ryan Heath and Lilia Fermor

As members will be aware, Sciaccas Lawyers have provided advice to QPUE members over the previous years on a range of issues dealing with claims for compensation arising out of motor vehicle accidents, workers’ compensation reviews and common law claims. The scope of these claims have included both physical and psychological injuries.

Psychological injuries are becoming more common in the workplace, creating a necessity for employers to take further measures to prevent such injuries from occurring. However, claims for psychological injuries have often been disparaged by employers which may be attributed to a lack of understanding about the causes and severity of psychological injuries and also due to the high costs that such claims incur for employers.

The Workers’ Compensation Regulator Statistics Report for 2016-2017 has revealed that approximately 62.9% per cent of psychological injury claims at the review stage to the Workers’ Compensation Regulator were rejected. This is a significantly higher percentage than for all other types of injuries.

The significant difference in the percentage of rejected psychological injuries compared with all other types of injuries is attributed to the challenges that the Workers’ Compensation and Rehabilitation Act 2003 imposes on injured workers.

In order to be successful in a psychological claim for compensation the applicant must prove that they are a ‘worker’ who has sustained an ‘injury’ within the meaning of s32(1)(b) of the Act. Under s32(1)(b) a compensable injury is defined as a personal injury arising out of, or in the course of, employment if the employment is the major significant contributing factor to the injury. Similar criteria is used to determine physical injuries and this definition can usually be substantiated on the medical evidence and factual evidence available.

However, in psychological claims for compensation, section 32(5) of the Act operates to exclude claims arising out of, or in the course of ‘reasonable management action, taken in a reasonable way’ by the employer in connection with the worker’s employment. It is this section of the legislation that operates to exclude the vast majority of psychological injury claims.

An injured worker firstly must lodge an application for compensation with the relevant insurer within six (6) months of first consulting with their Doctor about their injury caused from work. If the insurer rejects the application, then the worker is able to lodge an application for review with the Workers’ Compensation Regulator within three (3) months of receiving the insurer’s written reasons for decision. Sciacca’s Lawyers can assist members to do this and members are encouraged to contact us as soon as possible once they receive a decision.

In the event that the application is rejected by the Workers’ Compensation Regulator, the worker has the option of appealing the Workers’ Compensation Regulator’s decision to the Industrial Relations Commission, however this can often involve significant legal fees for injured workers.

Reasonable Management Action

Numerous causative factors of workplace psychological injuries have been identified such as bullying and harassment by colleagues or management, excessive workloads or workplace pressures, inadequate staffing, unsupportive management or having been part of or witnessed traumatic incidents.

A significant number of injured workers attribute their condition to the conduct of management. In order to limit the acceptance of psychological claims, s32(5) of the Act is applied to claims that detail any aspect of management action as causative of the worker’s condition. The injured worker then has the evidentiary onus of proving that the conduct of their employer has been unreasonable management action taken in an unreasonable way.

Substantiating that management action has been unreasonable has proven to be a difficult feat for injured workers. Workers need to provide clear evidence from other employees or provide documentation to support a contention that management has acted in an improper manner.

Often witnesses are reluctant to provide supporting statements for injured workers against their employer due to a fear of repercussions they may face. Accordingly, it can be very difficult for injured workers to satisfy that the conduct of management has been unreasonable.

It is very important that injured workers keep the stressors that they detail on their applications for compensation brief. Injured workers should only include stressors on their application which have been the most significant contributing factors to their psychological condition to prevent being trapped by the limitations imposed by s32(5) of the Act.

It is detrimental for a worker to detail multiple factors of lesser significance on their applications for compensation where such factors relate to the conduct of management. If the injured worker has one strong factor as causative of their condition, it is important that they limit their application to detailing this particular factor and do not attempt to rely upon a range of weaker factors related to the conduct of management.

Delaney v Q-Comp

A common case referred to by the Workers’ Compensation Regulator when determining claims which involve incidents joined by subject matter, time and personality, is the Industrial Court decision of Delaney v Q-Comp [2005] QIC 11. Here a global approach in determining the reasonableness of management action across multiple stressors was applied by President Hall.

Mr Delaney had made an application for compensation for a psychological condition that arose out of a series of incidents by management, which in isolation were considered mere ‘blemishes’ on the part of management.

However, President Hall considered that Mr Delaney’s case involved repetitive blemishes joined by subject matter, time and personality in a discordant workplace where management had knowledge that this worker had previously suffered a psychological injury; thus a global evaluation of the reasonableness of management action was appropriate in the circumstances.

The global approach in assessing whether management action over a period of time has been reasonable, has generally resulted in greater success for injured workers in having their claims accepted.

However, this area of law is still developing and the particular approach used by the Workers’ Compensation Regulator or the Industrial Relations Commission when determining whether or not the psychological injury arose out of or in the course of reasonable management action or unreasonable management action, will be dependent upon the circumstances of each particular case.

Important things to remember

It is important for police officers to have reference to the following matters when completing any application to WorkCover Queensland for a psychological injury:-

  1. To avoid the provisions of s32(5) of the Act we remind officers that it is important to limit the factors in their application to those which are the most significant.
  1. Often the Claims Advisor for WorkCover will ask injured workers whether there are any other factors that they believe have contributed to their condition. Officers should be cautious of detailing too many insignificant factors verbally or in writing which may result in their claim ultimately being defeated.
  1. If management action does not form a significant causal factor to the psychological condition, then do not refer to any aspect of management action in the application for compensation.

Sciacca’s Lawyers are available to advise any member who has a query with respect to any workplace injury or injuries arising from motor vehicle accidents. Please direct any queries to Mr Ryan Heath on 3867 8839.