Published: 07 June 2016
Author: with research assistance from Kate Stowell
WorkCover stress claims can be successful
At a time when there is more openness and acceptance of people suffering from psychological injury the Workcover system in my view is failing many of the Workers that suffer from depression, anxiety and other psychological conditions.
In practice I am seeing more and more people suffering from stress due to pressures at work.
These pressures might be difficult colleagues, unreasonable expectations in terms of work volume, or a lack of support in jobs that involve a high amount of stress.
Unfortunately workers often suffer in silence, and thus do not record the symptoms and circumstances with their doctor at an early stage. Instead they battle on while often their work deteriorates due to the stress. That deterioration in their work leads to the need for management action. The management action is what tips the worker over the edge and prompts them to make a claim for psychological injury.
However, under Workcover legislation a worker is unable to claim compensation if the psychological injury occurs due to reasonable management action.
Workcover insurers have come to rely upon this exemption more and more as there is no entitlement to compensation if the mental injury was caused wholly, or predominantly, by any one or more of the following:
- management action taken on reasonable grounds, and in a reasonable manner, by or on behalf of the worker’s employer
- a decision of the worker’s employer, on reasonable grounds, to take, or not to take any management action
- an expectation by the worker that any management action would, or would not be taken, or any decision made to take, or not to take any management action.
Management action is defined as one or more of the following:
- Appraisal of the workers performance
- Counseling of the worker
- Suspension or stand down of the worker’s employment
- Disciplinary action taken in respect of the workers employment
- Transfer of the workers employment
Why these claims are difficult - how to improve your chances of success
Although these types of claims are by no means impossible to succeed in, the lack of evidence of the preexisting symptoms makes it very difficult to prove that the injury did not occur due to reasonable management action.
Workers are often reluctant to complain to management about what is causing their stress and to put their employers on notice that they are suffering illness due to these circumstances. However, if workers do record these issues with both their GP and their manager (preferably in writing) they will strengthen their case if the situation does not improve and they end up needing time off work and/or medical treatment.
Ann Cunningham is a personal injury lawyer practicing in Colac.