More work injury claims are getting rejected at the first hurdle, but now is not the time to throw in the towel, write TGB’s Tim White and Daniel Clarke.
How can my work injury claim be rejected when it is caused by my employment?
Increasingly, we are seeing injury claims rejected on the basis of numerous exceptions, in both Commonwealth and State work injury legislation. So, despite an injury clearly being caused by an individual’s work duties, insurers increasingly seem to be relying upon other exclusionary provisions in the legislation to reject an injured worker’s claim.
How can this possibly occur?
There are several provisions in the Safety Rehabilitation and Compensation Act (SRCA) which cover entitlements for Commonwealth employees injured at work, that allow for a “genuine work injury” to be rejected on some exceptional basis.
What are some of these exceptional circumstances?
Recently we assisted an injured Commonwealth employee, whose back injury was rejected on the basis that he had made a willful and false representation when submitting his Comcare claim form. In effect, due to an oversight in disclosing a prior back condition, that occurred years earlier, his current claim was rejected on the basis of his failure to disclose the earlier back condition.
Oversights or mistakes can occur when completing a Comcare claim form. Your claim should not be denied based on a non-disclosure of a prior or similar injury, simply because you forgot or overlooked it when you completed your current claim form.
What must be established is that you willfully or deliberately failed to disclose the prior work injury. In effect, your employer must establish you deliberately sought to deceive by not disclosing the prior injury.
This is a difficult threshold for the employer or insurer to meet. They must prove that you deliberately did not disclose the prior condition and thereby sought to deceive your employer or insurer.
Rejection of a psychological condition under a similar exception in the SRCA
Similarly for psychological conditions, even if your employment is a substantial cause of that condition, there is an exception contained in the Act that allows your claim to be rejected if it arose due to reasonable administrative action undertaken in a reasonable manner.
So, despite the fact your GP or psychiatrist may clearly support that your psychological condition has been caused by your work duties or what occurred at work, if that has arisen due to reasonable administrative action, taken by your employer in a reasonable manner, there is a way in which your Comcare claim can be rejected. This does involve very complex and technical considerations. It is very much based on the individual’s circumstances that occurred to you in your workplace and what gave rise to your psychological condition. So each case is different, thereby making it difficult to make general comments about what you must consider when or if you were to receive a decision rejecting your claim on this basis.
However, there have certainly been several recent judgments by Courts and Tribunals that have been supportive of workers’ claims, where their psychological claims have been rejected relying upon this exception. There certainly seems to have been a narrowing by the Courts and the Tribunals in the circumstances in which this exception can be applied. This is beneficial to workers.
If you have received a decision by your employer or insurer rejecting your work injury based on either of these type of exceptions or another exception in either a state-based scheme or the Commonwealth scheme (ie the SRCA) you should seek advice about challenging that decision.
These exceptions must be applied strictly, and not be allowed to be used more broadly to reject work injury claims.
Your individual circumstances are paramount to determining the likelihood of being able to challenge these type of decisions so you should seek advice in regards to your specific circumstances.
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.