I can work, just not with my boss

Workers compensation entitlements

Injured workers in NSW are entitled to receive workers compensation benefits, including weekly payments and medical treatment expenses, in circumstances where they developed a psychological injury (such as depression) if they are able to establish that their employment was a main contributing factor to the condition (or the aggravation of a pre-existing condition).

Psychological injuries often arise in the workplace as a consequence of conduct by management that is perceived by workers to be unreasonable. That can occur in a wide variety of contexts but is often labelled as bullying and harassment.

Weekly benefits

Leaving to one side the exclusionary provision under s11A of the Workers Compensation Act 1987 (“the Act”), injured workers in these circumstances face a significant hurdle in demonstrating an entitlement to weekly benefits. Section 35 of the Act provides that the weekly benefit payable to an injured worker with an incapacity for work is determined with reference to their pre-injury average weekly earnings though is reduced by a worker’s current earnings or otherwise “the amount the worker is able to earn in suitable employment“. Section 32A of the Act defines ‘suitable employment’ as,

“suitable employment”, in relation to a worker, means employment in work for which the worker is currently suited:

1. having regard to:
   1. the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
   2. the worker’s age, education, skills and work experience, and
   3. any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
   4. any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
   5. such other matters as the Workers Compensation Guidelines may specify, and
2. regardless of:
   1. whether the work or the employment is available, and
   2. whether the work or the employment is of a type or nature that is generally available in the employment market, and
   3. the nature of the worker’s pre-injury employment,
   4. and the worker’s place of residence.

The writer frequently receives instructions from injured workers to the effect that they can return to work in their usual position “just so long as they don’t have to work with him/her“. That is often an entirely reasonable expectation although invariably the employer is generally not prepared to remove the offending manager and the worker therefore needs to turn to workers compensation.  The difficulty would be apparent though from the definition of suitable employment contained in s32A however, because adopting the above example, the worker has full capacity for work, albeit not at their usual workplace while the offending manager remains in place. If that is reflected in the workers current Certificate of Capacity completed by their general medical practitioner, then really they have no entitlement to weekly benefits at all.

It is the writer’s view that the current legislative framework is poorly equipped to deal with these circumstances. That arises from the arbitrary definition of suitable employment contained in s32A of the Act. Ultimately, that will not change however, without legislative reform.

An interim answer is perhaps a practical rather than a legal one. When completing a Certificate of Capacity with the assistance of a general medical practitioner, perhaps thought needs to be given to whether a worker has any capacity at all to return to work in circumstances where they would need to be working with the offending manager. In those circumstances, can a Certificate be completed legitimately to say that the worker has no capacity for work?

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