Workers comp entitlements for stress disorders in the workplace
Stress can arise in the workplace from a number of sources including bullying and/or harassment by work colleagues, unreasonable demands from management or, in some cases, from subordinates.
Unfortunately, our firm has acted for a number of people who, as a consequence of stress in the workplace, have gone on to develop a psychological illness such as depression, post-traumatic stress disorder, anxiety disorders, agoraphobia and the like. The Workers Compensation Act 1987 and Workplace Injury Management & Workers Compensation Act 1998 regulate claims for workers compensation benefits made arising from psychological disorders. The workers compensation insurers responsible for administering claims often treat claims arising a psychological injury with scepticism and it is therefore important you receive advice from a compensation lawyer concerning your potential entitlements from the outset.
Claiming for Workers Compensation
There are generally two hurdles injured workers need to overcome in order to establish an entitlement to workers compensation benefits arising from a psychological injury.
Firstly, the worker must demonstrate they have a recognised psychiatric illness as opposed to mere hurt or distress arising from the stressful workplace events. Mere distress will not ground a successful workers compensation claim. Generally speaking, the general medical practitioner, treating psychiatrist or psychologist will have diagnosed an illness of some description, ordinarily depression or an anxiety disorder.
Secondly, insurers often argue that an employer should not be liable for a worker’s psychological injury because it has arisen in circumstances where the employer alleges it was engaging in the reasonable performance management or reasonable discipline of the worker. Section 11A of the 1987 Act provides a complete defence to a claim arising from a psychological injury if an employer can demonstrate the injury arises predominantly from reasonable performance management or discipline. Section 11A is the source of many disputes which find their way into Workers Compensation Commission though, in the writers experience it is rarely the case that a genuine claim cannot overcome the hurdle imposed by that provision. For example, employers will often try to construe a particular situation as performance management or discipline when clearly it is not. We sometimes act for workers who first become aware they are being performance managed well after the fact, due to a failure on the part of the employer to communicate with them effectively.
Where a situation clearly involves performance management or discipline, it is often the case that for one or more reasons, the process behind the performance management or discipline has been unreasonable. For example, the employer may have failed to give reasonable notice of a disciplinary meeting, or conducted that meeting in an abrupt or inappropriate manner. In either of those cases, the s11A defence may fail.
Finally, if your employer has acted reasonably, but your stress arises from a combination of factors, of which the reasonable discipline or performance management is only a part, you may be able to successfully challenge an adverse decision of an insurer.
It is important that you seek the advice of a lawyer from the outset, and particularly before signing any statement prepared for you by a private investigator engaged by the insurer, or before attending any independent medical examination (IME) arranged by the insurer. The background to stress claims can often be very complex, and it is easy for a case to come undone if the insurer manipulates the evidence in its favour at an early stage.
The workers compensation benefits payable to a worker suffering the effects of a psychological injury are the same as those payable to a worker suffering from a physical injury, including weekly payments and the provision of medical treatment.
Thankfully, many people who find themselves in stressful situations at work are able to move on, either by removing themselves from the workplace or successfully pursuing their compensation claim. For those who develop a chronic condition which prevents them from working in the long term, the legislation provides that a claim for permanent impairment may be made where a worker’s whole person impairment is assessed to be at least 15% (assessed in accordance with a set of guidelines). Those workers who are unfortunate enough to be found to have that degree of impairment may claim compensation in negligence against their employer for their past and future loss of income, arising from the stress disorder.
If you are suffering from stress related condition call Turner Freeman Lawyers on 13 43 63 for advice. Our New South Wales offices are in Sydney, Parramatta, Campbelltown, Newcastle, Penrith, Wollongong and Gloucester.