Workers are entitled to worker's compensation for psychological injuries sustained in the workplace. However, claims for psychological injuries are disproportionately the subject of disputes by employers and insurers. It is important that workers making claims for psychological injuries are aware of their rights, particularly if the claim is disputed.
When is a worker entitled to compensation for a psychological injury?
The following workplace interactions, environments or behaviour may be considered causes of a worker suffering a psychological injury:
- Workplace bullying and harassment;
- Exposure to traumatic events;
- Physical and resep;
- Exposure to occupational violence and aggression;
- Excessive workload;
- Unreasonable time pressures and deadlines;
- Being required to work unreasonable overtime;
- Poorly managed organisational change and support;
- Long hours;
- Being unfairly targeted in the workplace.
When is a worker's compensation claim for psychological injury disputed?
Employers and insurers in Tasmania have 84 days from the date a claim is made to "dispute" liability.
An employer might dispute a claim for reasons including:
- There is a dispute about the factual circumstances in which the injury occurred;
- They do not accept that a worker gave "notice" of their injury in time;
- They do not accept that the worker's claim was made within time (being six months from the date of injury); or
- They believe the injury arose substantially from "reasonable management action".
A worker whose claim is disputed at this early stage will receive a referral under section 81A of the Workers Rehabilitation and Compensation Act 1988. This dispute is sometimes called an "81A referral".
What is "reasonable management action"?
Frequently, employers and insurers disputing claims will rely on the defence of "reasonable management action" to dispute a claim.
Generally, there is no entitlement to worker's compensation if the injury arises substantially from:
- Action taken to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker's employment; or
- Action taken to not award or provide a promotion, transfer or benefit in connection with a worker's employment; or
- administrative action taken in a reasonable manner by an employer in connection with a worker's employment.
Where that action is reasonable and done in a reasonable manner.
The question of what amounts to "reasonable" and "done in a reasonable manner" are often complex and can involve consideration of:
- The nature of the action;
- The worker's rights under their instrument of employment;
- The employer's policies, processes and procedures;
- The way in which the action was carried out;
- Whether the action was arbitrary, unjust, unfair or discriminatory.
If you're unsure whether an incident at work constitutes reasonable management action or whether it is bullying or harassment, you should seek advice from a lawyer experienced in worker's compensation claims.
What can I do if my worker's compensation claim is disputed?
If your worker's compensation claim is disputed on any ground, it is important to seek legal advice as soon as practicable. While a claim might be disputed at first instance, it may still have significant merit, and workers may be entitled to benefits including:
- worker's compensation weekly payments;
- payment for General Practitioner care;
- payments for professional consultations, including with a psychiatrist or psychologist;
- payment for medications and other treatments; and
- a "whole person impairment payment" in some cases.
Workers whose claims are disputed have a right to seek that their payments be reinstated in the Tasmanian Civil and Administrative Tribunal (TasCAT).
Many claims which are successfully disputed under section 81A can be brought back to the Tribunal at a later date, by way of referral under section 42 of the Workers Rehabilitation and Compensation Act 1988. There are no time limits for doing this, but it will often be in a worker's interest to take action sooner rather than later.
You can learn more about disputed claims in our earlier blog, "What to do if your Tasmanian worker's compensation claim is disputed?"
Get help from a worker's compensation lawyer
Going through the process of a worker's compensation claim can be stressful, frustrating and exhausting. The stress can often be compounded when the claim involves a psychological injury. We provide experienced and timely support and are available to answer any questions you have throughout the process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.