Workers’ Compensation Lawyers Explain Psychological Injury Claims

If you suffer psychological injury in the course of your work, whether from exposure to trauma, work stress, bullying & harassment or unfair or unreasonable management action, you have a right to seek compensation and damages.

You’ve a right to workers’ compensation benefits & where the injury is as a result of the wrongful actions or negligence of your employer or a co-worker, then you’ve also a right to seek damages by way of a Common Law claim.

The problem arises in cases where the psychological or psychiatric injury has arisen as a result of management action. In such case, there is opportunity for Workcover Queensland or the self-insured employer to exclude such claims under workers’ compensation legislation, on the grounds of “reasonable management action undertaken in a reasonable manner”. This is often used as a bar to workers who suffer psychological or psychiatric injury in the workplace.

What this exclusion provision means, is if you suffer your psychological injury as a result of action by management that is reasonable, and the way that management action is undertaken is considered reasonable, then you will not be entitled to a workers’ compensation or Common Law claim for that injury.

For example, say you apply for a promotion, don’t win the job and suffer depression as a result and are unable to work. You apply to Workcover Queensland for a workers’ compensation claim, however, your claim is rejected. The reasons given are that the applicant given the promotion won it on merit and appropriate and fair processes were followed in advertising the role, considering applicants, determining the best candidate for the role and in the process of advising those who were unsuccessful.  If this is the case, then you will not have an entitlement to a workers’ compensation claim or any claim for compensation or damages for your psychiatric injury.  This is because determination of the promotion was reasonable and the way management carried out the process was also reasonable. Hence, the exclusion of psychological and psychiatric claims under the Workers’ Compensation & Rehabilitation Act 2003, will apply.

However, say that the promotion is given to a relative of your employer, who has no experience for the role and is in fact, your subordinate who you have been training. Obviously the whole process of advertising the promotion and the application process was simply a farce. If this can be shown to be the case, then awarding of the position to your subordinate was not reasonable management action and nor was it undertaken in a reasonable manner. You would in such case, have a right to workers’ compensation benefits for your psychiatric injury, including payment for your treatment and wages whilst you are unable to work. You will also have entitlement to bring a Common Law claim for the wrongful actions of your employer, and obtain damages for your injury and any resultant loss and damage you have sustained because of your injury.

Entitlement to workers’ compensation and Common Law damages for your psychological or psychiatric injury from your work, is not just limited to injury arising from unreasonable management action, but where the action is reasonable but applied unreasonably, then you will also have entitlement.  For instance, a complaint is made in relation to your work performance and you are called to a meeting with your supervisor over the issue. During that meeting, the supervisor yells abuse at you or fails to listen to what you have to say or provide you with a reasonable opportunity to put forward your case, before making an adverse decision against you.

In such situation, even though it may have been reasonable to hold the meeting to discuss your work performance, the manner in which that action was taken was not reasonable and in such case, the exclusion would not apply. You would have a right to seek workers’ compensation benefits and damages for a psychiatric injury sustained as a result of the meeting with your supervisor.

This exclusion of psychiatric injury claims is only in respect to cases of pure psychiatric injury.  It doesn’t apply to cases where psychological injury has arisen as a consequence of physical injury sustained at work. It also doesn’t apply in cases where psychological injury has arisen due to being exposed to a traumatic event in the workplace, or because of bullying and harassment. Bullying and harassment can never be considered reasonable management action.

There are avenues of appeal where you’ve been rejected in your claim for psychiatric injury due to reasonable management action undertaken in a reasonable manner.  You can at first instance, apply to the Workers’ Compensation Regulator to have the decision reviewed.  If this is unsuccessful, you can appeal this determination with the Queensland Industrial Relations Commission. Final appeal is to the Queensland Industrial Court.