Bullying, workplace harassment and inappropriate behaviour - the common thread to all of these is stress and psychological injury, and the number of compensation claims is rising. For Commonwealth workers looking to make a claim, the process can be complex. TGB partner Tim White explains what to look out for.
Are these type of Comcare claims becoming more common?
Certainly from the inquiries I receive there is an increasing number of Commonwealth workers making psychological injury claims as a consequence of events that have occurred during the course of their employment.
Comcare is the insurer and regulator of the majority of Commonwealth employee work injury claims. Comcare has indicated that 35% of the total cost of work injury claims arise from psychological injury claims alone.
Reportedly here is approximately 394,000 individuals with claims currently managed by Comcare. A large percentage of those relate to psychological injuries arising from bullying, harassment, stress and/or anxiety in the work place.
Do I have to prove negligence to have an accepted psychological Comcare claim?
The short answer is no. The relevant legislation is called the Safety, Rehabilitation and Compensation Act (SRCA). It is a no fault scheme. You do not have to establish a breach of duty of care in order to have an accepted work injury claim.
What do I need to establish for my psychological condition to be accepted as work related?
Frequently I assist people whose psychological claim has been rejected by Comcare. There are several reasons typically why a psychological claim is rejected by the insurer or your employer.
It is important to be aware of the fact that a psychological condition is typically considered under the SRCA to be a “disease”. That is a vital factor in determining what criteria you must then fulfil in order for your condition to be accepted as being work caused.
In short, in order for a “disease” to be accepted as having been caused by work, you must establish that the “condition you have been diagnosed with was contributed to, to a significant degree, by your employment.”
When submitting a Comcare claim form, and gathering the relevant medical evidence, it is vital that you explain and indicate clearly how an incident or incidents at work have significantly contributed to your diagnosed medical condition. Frequently claims are denied as a consequence of an employee not adequately explaining or outlining clearly how the work events have caused or contributed to the psychological condition.
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What if there are other factors outside of work that cause me stress, can I still have an accepted psychological injury claim?
I frequently see people that have events that have occurred in their life, which have occurred either before or around the time of the stressful incidents at work. Provided the work incidents remain a significant cause of your diagnosed psychological condition, having other events that impact on you psychologically outside of work, will not exclude you from having a work injury claim accepted.
However, when consulting a doctor in relation to your work injury claim it is very important that you outline any relevant prior history or relevant recent events that could be impacting on you. It is important that the doctor is aware of your medical history and also the events that have occurred at work giving rise to your work injury claim.
Indeed it is rare that clients I assist will only have experienced stressful events at work. That is, there is increasingly multiple factors to take in to account, which could include a prior history of a psychological condition, other significant family events occurring, and other non-work related trauma that have caused psychological symptoms. Despite these other non-work related factors being present, those alone do not exclude you from still potentially having a work caused psychological injury.
How does the exception of “reasonable administrative action” apply?
With psychological claims there is a further challenge to meet, that does not apply to a physical injury claim. This is referred to as the “reasonable admin action exception”. It is contained in Section 5A of the SRCA. Essentially this Section allows an insurer or your employer to reject a psychological work injury claim if one of the causes of your condition has resulted from reasonable administrative action.
Reasonable administrative action is defined in the SRCA. It can include things like a failure to obtain a promotion or a failure to obtain a benefit (which could for example include a pay increase), or discipline action taken against you, or a counselling meeting in relation to work performance or a reasonable appraisal of your work performance,etc. This is certainly not an exhaustive list of what could amount to reasonable administrative action but it should give you a feel for the sort of things that can be relied upon to deny your psychological claim.
There have been a number of recent decisions, however, narrowing down the application of this exception. The Courts have been increasingly reluctant to apply this exception in a broad way. This is, in my view, certainly beneficial for injured workers. Although this is still an exception that is regularly relied upon to reject a claim. In view of these more recent decisions though there are good grounds upon which to challenge such a rejection .
What are my entitlements if my Comcare claim is accepted?
If you have an accepted psychological injury claim under the SRCA there are a number of entitlements that you would have. These include weekly payments, which is essentially your wage whilst you are not able to work, reasonable medical expenses, rehabilitative assistance and a permanent impairment claim.
A permanent impairment claim is a lump sum amount of money that is payable for your injury, if you have a permanent impairment of 10% or more. This payment does not close off your other entitlements, it is in addition to them.
If my Comcare claim has been denied how do I challenge it?
There are certainly various avenues through which to challenge a determination or decision rejecting your work injury Comcare claim.
If you have a primary decision rejecting your psychological claim, which is the first decision that is made, you must request what is referred to as a reconsideration decision. The request for reconsideration can simply be made via email or a letter to the insurer or your employer. You must set out the grounds upon which you challenge the initial decision.
Once you received the reconsideration decision, if you still disagree with it you are able to challenge that to the Administrate Appeals Tribunal (AAT).
I assist clients with both reconsideration letters and also with disputing matters to the AAT.
Psychological claims arising from bullying, workplace harassment, or other inappropriate behaviour are on the rise, but these claims are complex. It is important you seek legal advice at the earliest opportunity, particularly if your Comcare claim has been denied.
Every person’s case is different and must be assessed on its specific facts. Thankfully, if you disagree with a decision made about your case, there are avenues through which to challenge it.
Get in Touch!
To discuss anything in this article, or if you believe you may be eligible for compensation and would like help with your Comcare compensation claim, please contact TGB partner Tim White.
Tim and his team advise Commonwealth employees across Australia on their entitlement to compensation, and making Comcare claims.