By Ryan Heath Sciacca’s Lawyers Special Counsel
We continue to provide advice and assistance to police in lodging claims for psychological injuries pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”).
As previously discussed in earlier articles, claims for psychological injuries are different to physical claims in that they can take longer to decide, are more difficult to prove and as a result a much higher number are rejected.
One of the significant issues contributing to the rejection of claims is the timeframe for when an application must be lodged.
In Queensland a claim for workers’ compensation is only valid and enforceable if the application is lodged within six (6) months after their entitlement to compensation arises. In accordance with section 141(1) of the Act an entitlement to compensation is said to arise on the day the worker is “assessed by a doctor”.
The Workers’ Compensation Regulatory Authority is currently guided by the Industrial Relations Commission decision of Andrew Toward v Simon Blackwood (Workers’ Compensation Regulation) 2015 [ICQ008] in determining when a claimant’s injury has been “assessed” for the purposes of section 141 of the Act.
In accordance with the test established in the decision of Toward, the following circumstances will be sufficient to give rise to the six month timeframe to run:-
- Where a police officer attends upon their medical practitioner for treatment; and
- The medical practitioner makes a diagnosis or conducts an assessment of an injury; and
- The doctor has formed some conclusion or expressed an opinion that the injury arose out of the officer’s employment.
Section 141 of the Act and the Toward decision has had significant consequences for police in determining their WorkCover claims. In our experience police are generally reluctant to lodge WorkCover claims for pure psychiatric injuries given the stigma attached.
Police are more likely to consult their general practitioner for treatment in the hope that an improvement in symptoms will prevent any time off work and the necessity to lodge a WorkCover claim. However, this course of action, or stoicism, can be fatal to the success or otherwise of a WorkCover claim.
The good news is that recently the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill (“the Bill”) was introduced into the Queensland parliament.
The Bill seeks to implement a number of suggestions arising from a review of the scheme conducted by Professor David Peetz in 2018. The review was conducted by way of targeted consultations and taking written submissions from key stakeholders including trade unions, employer representatives, medical health associations, legal representatives and insurers.
The issues raised as a result of the Toward decision and its application to psychological injuries was highlighted by Professor Peetz in his report as follows:-
“The concern raised by stakeholders was that the affect of the decision in Toward has been detrimental for workers with chronic, insidious or psychiatric injuries, as many do not claim workers’ compensation upon diagnosis because they are not incapacitated (either totally or partially). As a result, by the time the worker experiences an incapacity to work because of the injury, the resultant claim for workers’ compensation is rejected as being out of time.”
This has long been an issue for us in advising police with respect to lodging of claims for psychiatric injuries. Pleasingly, the Bill introduced into parliament seeks to address this by allowing WorkCover to waive the timeframe of six (6) months for particular applications.
The Bill provides that the worker will have twenty (20) days to lodge an application for compensation subsequent to a consultation with a doctor, nurse practitioner or dentist who has assessed the injury as resulting in either total or partial incapacity for work.
We consider this will have a significant benefit to police. Quite often police may consult their general practitioner or a psychologist under the early intervention prevention scheme seeking treatment for symptoms and hoping not to suffer any work incapacity. If those symptoms do not improve and result in an incapacity for work the workers’ compensation claims would normally be rejected as being out of time.
However, should the Bill pass through parliament the officer would then have twenty days subsequent to suffering that work incapacity to lodge the WorkCover claim.
A further significant change introduced in the Bill relates to the meaning of an injury. Currently section 32 of the Act contains the current definition of an injury:-
“Meaning of Injury:
(1) An injury is personal injury arising out of, or in the course of employment if – …
(b) For a psychiatric or psychological disorder – the employment is the major significant contributing factor for the injury.”
The proposed amendment would remove “major” and replace it with “a significant”. We consider this would further be a significant benefit for police given that psychological injuries by their nature are multifactorial in origin.
Previously it was necessary to establish that the relationship to work had been “the major” significant contributing factor. However, should the Bill be passed we would merely need to show it is “a significant” contributing factor.
Until such time as the amendment Bill is passed it remains crucial that police obtain prompt and accurate legal advice to assist in either lodging their WorkCover claims or seeking a review of unfavourable decisions to the WorkCover Regulator.
Sciacca’s Lawyers continues to provide an initial free consultation for police to assist in either lodging their WorkCover claims or seeking advice on prospects of success in reviewing unfavourable decisions.
Further, we continue to provide advices to police with respect to potential civil actions against the QPS or injuries arising from motor vehicle accidents.
Should officers require any advice they should not hesitate to contact our Mr Ryan Heath on (07) 3867 8839.