If you experience a work-related psychological injury or experience a work related psychological aggravation of a pre-existing condition you may be eligible to make a claim for workers compensation with Workcover Queensland (or a self insurer).
A work related psychological injury can be caused by various factors such as (but not limited to) sexual harassment, racial discrimination, bullying or assaults at work, poor working/safety conditions, stress, nervous shock from witnessing a traumatic event in the workplace, intimidation, conflicts with your employer or work colleagues, unreasonable work hours, unreasonable performance expectations and/or inadequate support.
A injured worker may also sustain a secondary psychological injury as a consequence of sustaining a work related physical injury or illness.
Making a claim
A person is entitled to make a workers compensation claim in Queensland if they have sustained an “injury” which is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. A claim for a psychological injury will not be successful if the injury arose from reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment or action taken by the Workers Compensation Regulator or an insurer in connection with the worker’s application for employment.
Time limits for Statutory Claim
An application for workers compensation is required to be lodged within 6 months from the date of the incident or when the cause of action arose. Relevant factors will also include the date that you first consult a medical provider to obtain medical treatment in relation to your injury.
The workers compensation insurer must waive the 6 month time period if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist.
The workers compensation insurer may waive the 6 month application period if the insurer was satisfied that the claimant’s failure to lodge the application was due to mistake, absence from the state or a reasonable cause.
If you are unable to commence a statutory claim because you are out of time, then you may be able to lodge a common law claim. The common law claim must be commenced within 3 years of the accident or when the cause of action accrued.
Impact on your employment
Many injured workers are concerned about making a workers compensation claim and how it will impact on their employment. It is important to note that the claim is funded by the workers compensation insurer and your employer’s contribution is limited to a small excess and their premium may increase marginally. There are protections within the workers compensation legislation and also within the Fair Work Act to protect an injured worker from being terminated or being treated unfairly due to lodging a workers compensation claim.
In Queensland, the employer must not dismiss the worker solely or mainly because the worker is not fit for employment in a position because of the “injury” within 12 months after a worker sustains the injury pursuant to the Workers Compensation and Rehabilitation Act (Qld). In the event that the injured worker is dismissed because the worker is not fit for employment in a position because of the injury, then the worker can apply for reinstatement to the worker’s former position provided that the application is made within 12 months after the injury and is accompanied by a doctor’s certificate that certifies the worker is fit for employment in the former position. If the employer fails to reinstate the injured worker, than an application can be made to the Industrial Commission for an order that the employer reinstate the worker to the former position. The Commission may make the order if satisfied the worker is fit for employment. Strict time limits apply.
Statutory Claim
The statutory claim is generally the first stage of a workers compensation claim.
If your workers compensation claim is accepted, then you will be entitled to claim statutory benefits such as medical expenses, rehabilitation and weekly benefits for time off work for the “injury” sustained in the course of your employment. This may include counselling with a psychologist or psychiatrist and may include appointments with a rehabilitation provider to assist your transition back to work. The insurer must pay the cost of the medical treatment or hospitalisation that the insurer considers reasonable, having regard to the worker’s injury.
If you are not satisfied with the decision/s of your workers compensation insurer during the statutory claim, then you may be entitled to apply for a review of the decision. Strict time apply and you should seek immediate legal advice.
If you are unable to return to work, then your workers compensation insurer has an obligation to assist you with a return to work program with your employer or a host employer if your employer is unable to provide suitable duties.
If an employer is unable to provide a worker with suitable duties during the course of the statutory claim, then the workers compensation insurer will seek to assist the injured worker with host employment with an alternative employer. The insurer may also assist with re-training. The host employment and/or re-training may assist an injured worker who is unable to return to their pre-occupation employment to transition into other employment.
An advantage with making a workers compensation claim is that the injured worker may be able to obtain reasonable medical treatment for the injury funded by the workers compensation insurer. This treatment may be able to be obtained much faster than if the injured worker has to obtain the treatment through the public health system. It may assist the worker in having a faster recovery and/or faster return to work.
Statutory Claim vs Common Law
In Queensland, there are two stages to a workers compensation claim – the statutory claim and the common law claim stage.
The statutory scheme is a no-fault scheme which means that you can apply for workers compensation if you are at fault or partially at fault for your accident. However, compensation is not payable if the injury is intentionally self inflicted. Compensation is also not recoverable if the injury was caused by the worker’s serious and wilful misconduct except in very limited circumstances.
At the end of your statutory claim, the workers compensation insurer will usually assess your injuries for permanent impairment and issue a Notice of Assessment with a lump sum offer. The amount of the lump sum offer is capped by government legislation which depends on the diagnosis of the injury and the level of permanent impairment sustained as a consequence of the injury.
Most workers will then need to make a choice whether to accept the lump sum offer or proceed with a common law. What is best for a particular claimant will depend on the circumstances of each case. An injured worker should immediately seek legal advice upon receipt of the Notice of Assessment as to how they should respond to the Notice of Assessment and whether they should make a common law claim. Strict time limits apply and some elections need to be made within 20 business days of receipt of the Notice of Assessment. The common law claim must be commenced within 3 years of the accident or when the cause of action accrued.
Common law claim
In order to recover compensation in a common law claim, the worker needs to establish negligence at law on the part of the employer. Reasonable management action taken in a reasonable way will not amount to negligence. An injured worker may recover more compensation at common law than they would in the lump sum statutory offer because at common law various heads of damages can be claimed such as general damages for pain and suffering, past and future medical expenses and past and future loss of income/super. However, this will depend on the circumstances of each particular case, including liability issues as sometimes a worker may recover more from a lump sum offer in a statutory claim.
A claim for damages for personal injuries must be commenced within 3 years of the accident or when the cause of action accrued. Prior to commencing court proceedings, the injured worker must comply with the pre-court steps of the Workers Compensation and Rehabilitation Act (Qld).
Time Limits apply
There are strict time limits which apply during the course of a statutory and a common law claim in Queensland. If you have missed a time limit, then you will be unlikely to claim your entitlements. You should seek urgent legal advice if you have missed a time limit to advise you of your entitlements and whether you are able to proceed.
TPD (Total and permanent disablement) Claim
A person who has suffered work related psychological injury may also be able to make an income protection or TPD claim on the insurance attached to their superannuation fund/s.
To request information about our available legal services, or to discuss your personal circumstances with one of our experienced lawyers, please do not hesitate to contact Turner Freeman Lawyers on 13 43 63.
Our Queensland offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.