Psychological Injury Workers Compensation Claim

Workers’ Compensation claims related to psychological injuries are increasingly common in New South Wales. Workers across the state are grappling with mounting work pressures, heavy workloads, and instances of bullying and harassment—whether in person or while working remotely. These challenges are taking a toll, resulting in psychological injuries sustained within the workplace.

Do I Have a Workplace Psychological Injury?

Most workers when they experience stress, anxiety or depression may not need to lodge a workers compensation. Often a couple days off, seeing a treatment provider, a change of jobs or completion of a task means that the worker feels better or is managing their health properly.

However, if you are experiencing significant symptoms of stress, anxiety, poor sleep, difficulty focusing and need to consult your General Practitioner (GP), you may have a psychological injury.

How Do I Lodge a Psychological Workers Compensation Claim?

See Your GP

To determine whether your symptoms have resulted in a psychological injury, it’s essential to consult your General Practitioner (GP). If your doctor provides a medical opinion that you are unwell and have a diagnosable psychological disorder, you may be eligible for a workers’ compensation claim. Under the Workers Compensation Act 1987 (NSW), having a diagnosable psychological condition is a prerequisite for making a claim. Therefore, a mere medical certificate stating that you are “stressed” is insufficient. Your doctor must independently opine that your workplace has caused the injury.

Remember to seek professional advice promptly and provide accurate information to support your claim.

Obtain a Certificate of Capacity (COC)

If your treating doctor believes you have a psychological injury, they will need to complete a SIRA Certificate of Capacity (COC). This certificate consists of three pages, where your doctor provides the following information:

  1. How the Injury Occurred at Work
  2. Diagnosis
  3. Treatment Recommendations
  4. Recommendation Regarding Work Capacity:
    • Totally Incapacitated for Work
    • Fit for Suitable Duties
    • Fit for Pre-Injury Duties

If your doctor issues a COC, you may be eligible to lodge a workers’ compensation claim.

Lodging a Workers Compensation Claim

Lodging a Workers’ Compensation Claim for Psychological Injury

Once you’ve obtained a Certificate of Capacity (COC) for your psychological injury, you may consider lodging a claim. While some law firms advise individuals to lodge the claim independently and seek assistance only when issues arise, at Grieve Watson Kelly Lawyers, we recommend a different approach.

Contact us before lodging your claim. We are equipped to assess your situation and determine whether a workers’ compensation claim is your optimal course of action. Our expertise allows us to evaluate your matter even before it is officially lodged.

What Are the Key Requirements to Make Workplace Psychological Injury?

  • Worker Classification: The first step in determining eligibility for workers’ compensation is establishing whether you fall into the category of a “worker” or a “deemed worker.”

    1. Worker: This category includes individuals who are employed on a casual, fixed-term, part-time, or full-time basis by an employer. It represents the most common form of employment.
    2. Deemed Worker: A deemed worker situation arises when your employment status is unclear or falls outside the typical worker-employer relationship. Some elements associated with deemed workers include (but are not limited to):
      • Direction by the Employer: You receive instructions from the employer regarding the work to be performed, as well as the time and manner in which it should be carried out.
      • Actual Work Requirement: You are required to actively perform the work.
      • Time-Based Payment: Compensation is based on a time basis (e.g., hourly or daily).
      • Supplied Tools and Materials: The employer provides necessary tools and materials for the work.
      • Exclusive Employment: You work exclusively for a single employer.
      • PAYG Tax Arrangements: Your employment is subject to Pay As You Go (PAYG) tax arrangements.

    If you are self-employed or a contractor, you may not be covered by workers compensation. However, you may have purchased a workers compensation policy (if you have incorporated) or you may have taken out different insurance. You may have purchased a TPD policy or income protection policy.

    If the Workers’ Compensation insurer has disputed your matter based on whether you are a “worker”, contact Grieve Watson Kelly Lawyers. We can discuss your specific circumstances and explore whether an appeal is possible.

  • Medical Diagnosis: As we discussed earlier, your psychological injury must be a diagnosable medical condition. Mere “stress” is insufficient. Some common examples of workplace-related psychological conditions we encounter include:

    • Adjustment Disorder
    • Acute Stress Disorder
    • Major Depression or other depressive conditions
    • Anxiety Conditions
    • Post-Traumatic Stress Disorder (PTSD)

    Remember that there are many more compensable medical conditions beyond these examples. These are just a few of the commonly observed ones.

  • Connection: According to the Workers Compensation Act 1987 (NSW), your employment must be a substantial contributing factor to a psychological injury. This also covers aggravation of a pre-existing condition. See below for more information about pre-existing mental health conditions.

Section 11A

Section 11A Defence: No compensation is payable under the Workers Compensation Act 1987 (NSW) in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer. These actions include matters related to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal of workers, or the provision of employment benefits to workers.

In simpler terms, if your psychological injury results from reasonable actions such as those mentioned above, your claim for compensation can be disputed.

If you’ve received a dispute notice from the insurer based on Section 11A, we recommend contacting Grieve Watson Kelly Lawyers to discuss whether it can be appealed. We can assess the situation and provide guidance accordingly.

What If I Have a Pre-existing Mental Health History?

Contrary to common belief, having a pre-existing psychological condition does not automatically prevent you from claiming workers’ compensation in News South Wales. Many individuals may have a historical mental health condition, a prior workers’ compensation claim, or an underlying psychological condition at the time of your employment. Despite this, you can still pursue a workers’ compensation claim.

Section 4 of the Workers Compensation Act 1987 (NSW) addresses situations where there is an aggravation, acceleration, exacerbation, or deterioration of an underlying or pre-existing disease during the course of employment. However, compensation is only applicable if the employment factor was the main contributing factor to the worsening of the disease. In this context, the term “disease” refers to the psychological or psychiatric disorder you may be experiencing.

For example, consider an individual with an underlying anxiety condition who remains gainfully employed. If their anxiety worsens due to work-related events being the main contributor, this “aggravation” may be compensable.

Honesty and credibility play a crucial role in your claim. While there is no definitive “scan” to prove psychological injury, your candid disclosure of pre-existing conditions is essential. Failing to disclose such conditions can complicate the process of proving your claim.

Workers Compensation Entitlements

Seeking Legal Guidance About Workplace Stress claims

Navigating a psychological injury in the Workers Compensation scheme can be difficult. If you’ve been seriously injured during the course of your work, consider reaching out to Grieve Watson Kelly Lawyers. Our workers compensation lawyers understand the complexities of personal injury compensation and workers compensation claims.

Disclaimer: This post provides general information based on NSW sources and laws and does not constitute legal advice. We recommend you consult with a lawyer to obtain legal advice for your individual circumstances.