by Tom Maling
Whether you work for a private employer or the public sector (Federal and State) in the ACT or NSW, there are laws which mean you can claim compensation for workplace psychological injuries covering treatment, lost wages and permanent injuries.
In this article we discuss:
- What psychological injuries are.
- The exclusionary reasonable administrative action rule.
- Causes of psychological injuries.
- Even if you had a mental illness before starting work, you may still be able to claim compensation if work has made it worse.
- There is a special rule for psychological injury claims limiting when you will be eligible for compensation. This is the reasonable administrative action rule.
- Psychological injuries are not just related to bullying and harassment, and you may be able to claim for an injury even if your work did not do something wrong.
- You may be able to claim compensation for medical treatment, loss of wages, and a permanent injury, and in some case domestic care and for your pain and suffering.
- We are experts in ACT, NSW and Comcare workplace psychological injury claims.
ACT, NSW and Commonwealth laws have different workers compensation schemes. Common to each though is a recognition that workers who get psychological injuries (also called mental injuries) caused by work are eligible for compensation. This includes illnesses such as Anxiety, Major Depression, an Adjustment Reaction and Post Traumatic Stress Disorder (PTSD).
If you already had a diagnosed mental illness before starting your work, you too may receive compensation if work has made your symptoms worse. Aggravation of a pre-existing mental illness may entitle you to compensation, providing work has caused the aggravation. There are special rules relating to pre-existing illnesses, which are aimed at ensuring that work actually caused a worsening of symptoms, rather than the symptoms naturally progressing or getting worse. So just because you already have Bipolar Disorder or PTSD, does not mean you may not be entitled to workers compensation.
Commonwealth, ACT and NSW laws all contain a special rule excluding some psychological injuries from being entitled to compensation. There are differences between each, but the general concept is that a psychological injury caused by a reasonable administrative action is not entitled to compensation. So, if your employer reasonably does something such as performance management, counselling about performance, disciplining you, transferring you, or even demoting you, and this causes a psychological injury, then you may not be entitled to workers compensation such as lost wages and medical treatment.
In ACT and NSW workers compensation laws, the reasonable administrative action must be “the whole or predominant cause” of the injury. Under the Comcare system, the action only need be “a” cause, regardless of how small, for the exclusion to apply. The other key point is that the employer’s action must be reasonable in the circumstances, and taken reasonably. Workers need to be very careful about when and how they make claims.
Causes of psychological injuries
Often people think they can only make a claim where they have been bullied, or work has done something wrong. This is wrong! While we have clients who have received a psychological injury following bullying and harassment at work, psychological injuries can also be caused by your normal work duties.
Think about a first responder such as a Paramedic or an Australian Border Force officer who develops a psychological injury as a result of their normal duties. There is no need for their workplace to have done something wrong to them. The same applies for workers such as office workers, public servants, health professionals and tradies: you do not necessarily need to show that your employer did something wrong. If your work brings you into contact with a situation that is shocking or your work is stressful and you are struggling to manage, you may be able to bring a claim.
We can work with you
We are passionate about issues concerning mental health and the law. As experts in workplace psychological injury law, we are experienced in working with clients who have a mental illness. We pride ourselves on developing a rapport with our clients to learn about their experiences and provide outstanding results.
You will work with Matthew Bridger and Thomas Maling. Matt has over 25 years’ experience as a workers compensation lawyer. Tom initially trained as a Registered Nurse and worked in mental health, and has maintained a keen interest in this area as a lawyer. Both Matt and Tom work with clients in ACT, NSW and Comcare psychological injury claims. Please feel free to contact us to discuss your claim.
IMPORTANT: If you (or someone you know) are experiencing symptoms of a mental illness you should seek help from your GP immediately. Alternatively, other resources you may access include:
- ACT Mental Health Crisis and Assessment Team 1800 629 354
- Lifeline 13 11 14
Comcare and Psychological Injuries
p: +61 2 6206 1300 | e: Info@elringtons.com.au