The workers’ compensation process is fraught with hurdles and an imbalance of power for the worker. This is particularly the case with psychological injuries which are statistically the most difficult to have approved. Only 37.6% of psychological injury claims are accepted by WorkCover.
For a statutory workers’ compensation claim to be approved without issue, the claimant must have an understanding of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”). Particular sections of relevance are the definition of ‘worker’ (s.11 of the Act), and the definition of ‘injury’ (s.32 of the Act). The legislation was amended in October 2019. For claims lodged prior to 30 October 2019, employment must have been the major significant contributing factor to the injury. For claims lodged on or after 30 October 2019, employment need only be ‘a significant contributing factor’, thus decreasing the standard of causation that must be satisfied in order to have a psychological injury claim approved. That being said, the approval of a psychological injury claim is still not easy to achieve.
The claimant must also be aware of the 6 month time limit for applying for compensation and when their entitlement to compensation first arose (ss.131 & 141 of the Act). In the 2017-2018 financial year, 430 psychological injury claims were rejected due to having been lodged outside the statutory 6 month time frame. Claims will only be considered outside that time frame if the delay was due to mistake, reasonable cause, or absence from the State.
Then there are the exclusionary provisions of s.32 (5) of the Act. This section is the most manipulated and overly relied upon section of the Act, as it excludes any injury that has arisen out of management action that has been reasonable or carried out in a reasonable way. In the 2017-2018 year, 93.5% of the 62.4% of rejected claims were rejected using the ‘reasonable management action’ exclusion clause.
Claims Assessor’s look for any element of management action in the information you provide them, in order to bring a claim within the scope of the exclusionary clause. I have also seen Claims Assessors lead injured workers into commenting on management action, even when it is not a significant contributing factor. My advice is to never discuss the cause of your claim over the phone with a Claims Assessor. Instead, request to provide a written statement so that you can ensure accuracy of the information you provide. You can then take the time to prepare a statement with professional assistance, and without the risk of information being misinterpreted or inaccurately reported by the Claims Assessor. This will also protect you from being led into inadvertently making a comment that may be detrimental to your claim. You must speak to the Claims Assessor initially to accept the terms and conditions of the claim, but I would strongly advise against discussing the cause of your injury over the phone.
Convincing a Claims Assessor that management action has been unreasonable is extremely difficult, and I have seen some incredibly poor decisions made. There is an overwhelming number of precedent cases that relate to the definition of ‘management action’ and what is considered ‘reasonable’. The inexperienced punter has no knowledge of these, and is further disadvantaged when trying to persuade the insurer that their claim ought to be accepted.
There is generally no training provided to workers on workers’ compensation legislation, and the average employee has no understanding of the Act, or even the process for lodging a claim. This can have adverse consequences for the worker. The unrepresented worker generally submits a psychological injury claim as they would for a physical injury, whereby they are used to few or no questions being asked about their injuries before the claim is accepted. Rarely are witnesses ever contacted to prove that you fell at work and hurt your knee. Psychological injury claims are a whole different ball game, and as previously discussed, the legislation makes it easy for the insurer to deny your claim.
In any case, the onus is on the claimant to prove that they have sustained a compensable injury. This means ensuring that you have medical evidence regarding the cause and nature of your injury, as well as supporting evidence of the events you list in your claim. Evidence can include;
- Diary notes
- Voice recordings
- Witness statements to corroborate your version of events
- Copies of relevant policies that may have been breached.
Also, ensure your doctor is clear about what the cause of your injury is and has not misunderstood any information you have provided. You will need a workers’ compensation medical certificate to lodge with your claim. This is a different form to a generic medical certificate. You can lodge a claim online via the WorkSafe website, and upload your certificate. It is recommended that you do not even take this step without first seeking professional advice. You must also provide the certificate to your employer. WorkCover will then contact your doctor and ask questions about the cause of your injury, as part of your claim application contains an authority for them to do so.
Generally speaking, if your injury was caused through exposure to operational trauma – your claim is usually approved in the first instance. If it relates to management action of any sort, chances are it will be denied if you do not have professional assistance to prepare your claim.
Your psychological injury claim will be sent to your employer to allow them to respond to the material you have provided. You will have the opportunity to respond as part of the natural justice process. If the claim is rejected, WorkCover will send you a written reasons for decision.
Workers seeking to review a decision of WorkCover must still have the required knowledge of legislation, case authority and review procedures if their claim is to succeed. If the claim is again rejected by the Workers’ Compensation Regulator, the worker has the opportunity to lodge an Appeal to the Queensland Industrial Relations Commission. This is where I believe the most substantial injustice and imbalance of power is evident.
If a worker is not legally represented (most cannot afford this), they face the daunting experience of self-representation against a Government-hired Barrister representing the Workers’ Compensation Regulator (the Respondent). The Barrister obviously has extensive knowledge of Tribunal Rules, procedures, and relevant law, and is readily available to provide legal advice to the Regulator throughout the process. In contrast, the injured worker generally has no experience or knowledge in this field, and in many cases may be too unwell to self-represent. It seems as though the Regulator relies upon this to routinely oppose claims, knowing that the worker is unlikely to pursue the matter all the way to a Hearing.
The QIRC is also a costs jurisdiction and therefore if you lose your Appeal, you may be ordered to pay the other party’s costs. Costs may exceed $200k! For this reason alone, many injured workers are not willing to take the risk of pursuing their matter to the stage of a Hearing in the QIRC.
To be on a relatively equal playing field with the Regulator, legal representation is recommended when pursuing an Appeal. Most workers simply cannot afford this, which makes the system largely one-sided in favour of the Regulator. It would be encouraging to see self-represented workers being able to pursue an Appeal with legitimate grounds, without the risk of having costs awarded. This would ensure workers are not prevented by their financial status from challenging an unreasonable decision to deny their claim. If the worker cannot afford legal representation, (and many are also on extended sick leave) then it is unlikely they can afford to pay costs.
Persons in this category are often left with no option but to withdraw their Appeal, even when their case may be supported by an abundance of evidence and have a strong chance of succeeding. This results in a sense of injustice for the worker, and can at times impact further upon their psychological health.
It is highly recommended that you do not attempt to navigate the workers’ compensation system alone when it comes to psychological injury claims. The odds are largely against the injured worker, and professional assistance can give your claim the best chance of success in the first instance. This reduces the likelihood of having to Review or Appeal denied claims, and can save a lot of heartache.
 Office of Industrial Relations Statistics Report 2017-2018, retrieved from https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0003/167628/wcr-stat-report-2017-18.pdf