Workers Compensation Survival Kit – Part 2

In Part 2 of the Workers Compensation Survival Kit, Adelaide injury lawyer Mal Byrne writes about the investigation of a workers compensation claim.

So, you have lodged your worker report form and Workers Compensation Prescribed Medical Certificate with the employer who should have forwarded the documents to the claims agent so the claim can be investigated and determined.  The employer has to complete an Employer Report Form which is submitted to the claims agent with your Worker Report Form or shortly thereafter.  If the Employer Report Form is supportive of your claim, the claims agent will hopefully not need to conduct any further investigations into the facts or circumstances surrounding the claim.

However, if the employer expresses scepticism about your claim or your injury is serious, the claims agent may conduct an investigation into the incident itself.  If this occurs, the claims agent will engage the services of a private investigator from a panel of private firms to take a statement from yourself, possibly co-workers, supervisors and even your doctor.  The claims agent will also request a medical report from your treating general practitioner on the nature of your injury, why it is work related and your prospects of returning to work in the short or long term.  The claims agent might also arrange for you to be assessed by an independent medical specialist such as an orthopaedic surgeon or occupational physician.  If you are approached by a private investigator to provide a statement, I would strongly suggest that you instruct a lawyer to help you with your claim.

To be compensable, a work injury must arise from employment. From July 1 2015, the test for whether an injury arises from employment has become stricter. In the case of a physical injury, it must be “a significant contributing cause of the injury”. For a psychiatric injury or “stress claim” as they’re colloquially called, employment must be “the significant contributing cause”.

How do I survive financially while the investigation of the claim takes place?

Sometime, it can take two to three months for the claims agent to investigate and determine your claim. If you’re not working, how do you live? What if you need urgent medical treatment? The law gives the claims agent the discretion to offer a worker interim payments of income maintenance while a claim is being determined. The payments are discretionary. They are not an admission of liability and the claims agent can still reject your claim even if they have paid interim payments. Interim payments are recoverable if your claim is rejected.

Psychiatric Injury (Stress) Claims

Workers can suffer work related psychiatric injury in 2 ways.  The commonest way is that a worker who is already suffering from work related physical injuries that are severe and not responding to treatment and has not been able to return to work after a substantial period of time, suffers depression or an adjustment disorder or another psychiatric condition as a sequel to the worker’s work related physical injury.

The other circumstance is where a worker suffers a psychiatric injury at work where it occurs as a direct consequence of work.  For example, a bank teller might suffer post traumatic stress disorder as a result of being threatened during an armed robbery.  However, the most common work related psychiatric injury is psychiatric injury caused by the employer through work related stress or workplace bullying.  The history surrounding the development of workplace stress through work related bullying can often be protracted and complex.  The bullying may have taken place over a period of weeks or even months.  When employers are advised of these claims, they are often unsympathetic to the worker and deny that the worker was over burdened or bullied.  Workplace stress claims are frequently rejected and the subject of disputes at the SA Employment Tribunal.  Where a worker suffers a direct psychiatric injury, the employer can defend the claim if the employer can establish that the injury occurred due to reasonable behaviour by the employer.  The defence is not available to employers for physical injury.

As a matter of policy where worker claims psychiatric injury as a direct result of work, the claims agent will instruct a private investigator to take a statement from the worker and co-workers regarding the factual circumstances surrounding the claim.  They will also obtain a report from any treating doctors as well as an independent psychiatrist about the nature of the injury that the workers suffers and whether it was substantially caused by work.  Workers will often have to endure questions about their private life as the claims agent will want to be satisfied that it is work that is “the significant contributing cause” of the psychiatric injury and not circumstances in the worker’s private life such as relationship difficulties, bereavement or financial difficulties.

This does not mean that the worker has to show that the workplace bullying was the only stressor in their life.  However, they will need to show that those stressors took a back seat so to speak to the work related significant contributing cause. I anticipate that there will be litigation over the meaning of “significant contributing cause” over time and the new Tribunal will be dealing with many contested rejected claims for workplace psychiatric injury.

Where a worker alleges workplace bullying, the worker not only has to endure the bullying, but scepticism from the claims agent about the injury and sometimes negative conduct by the employer all of which only makes a psychiatric injury even worse.  Litigation is common and the stress of litigation also compounds the worker’s stress.  Hence, if you are about to or have lodged a claim for work related stress, I would strongly recommend that you instruct a lawyer to assist you with what can be a daunting process.

Part 3 of the Survival Kit will deal with what you should do once your claim is determined and in particular if you are dissatisfied with the determination.

For a free initial interview about your workers compensation claim, contact us. TGB assists workers in South Australia, Western Australia and Northern Territory.