Comcare and Psychological Injuries

by Tom Maling

Given the amount of time we spend at work and the high rate of Australians who experience a mental illness each year (approximately 4 million), it’s hardly surprising that work often causes a mental illness, or makes someone’s mental illness worse. 

Whether a nurse working on the front line of health care or a supervisor in the ranks of a government department, everyone deals with pressures at work that have the potential to impact on their mental health.  Comcare is the framework under which Commonwealth Government employees can apply for workers compensation, whether physical or psychological.  For ACT Government workers, EML manage claims for injuries, but applies the same law as Comcare.

There are special laws limiting the circumstances when an employer is liable to pay you compensation for a psychological injury.  If you think you may have received a psychological injury from work, it’s very important you understand the law prior to making a claim.

What is a psychological injury?
Psychological injuries caused by work include Post Traumatic Stress Disorder (PTSD), Adjustment Disorders, Anxiety and Depression. There are many factors that may impact your mental health at work, not all of which may be the fault of your workplace. This doesn’t matter, as you do not need to show that work did something wrong.
What if you already had a mental illness?
Those who already have a diagnosis of a mental illness may also be eligible for compensation where work has made their illness worse. This is because the law says that compensation may be paid where an illness is aggravated by someone’s work.
COVID-19 and psychological injuries
Factors such as the current public health crisis can exaggerate already existing stressors at work. Comcare has devoted special guides on looking after workers mental health during the pandemic (see here). Comcare acknowledge:

COVID-19 is changing the way we work and the way we live. We are  part of an evolving situation where we don’t know what will happen  next. Feeling uncertain, overwhelmed, scared, sad, confused or angry is common and expected

If a worker develops a psychological injury as a result of workplace changes and events associated with the COVID-19 pandemic, they may be covered by the Comcare scheme. It will be important for the worker to show that their psychological injury is related to work events, rather than any feelings associated with the pandemic generally.

What law does Comcare apply?

The relevant law for Comcare matters is the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).  This law says that workers will be covered if they have a psychological injury where work had ‘contributed to a significant degree’ to the injury. This does not mean work is the major cause. Quite often, there can be multiple causes. Providing work is ‘a’ (not ‘the’) contributing factor causing the injury, then the worker is entitled to support.

Under the SRC Act, injuries which are caused by an employer’s “reasonable administrative action” are not eligible for compensation

What is reasonable administrative action?
The big issue for workers is that if a cause of the psychological injury is a reasonable administrative action, the whole claim will fail.  For example, if work has made your Major Depression symptoms worse and one of the reasons is a reasonable administrative action, such as an undesirable performance appraisal, then your claim fails entirely.

Examples of administrative actions include:

  • Performance improvement plans/performance management
  • Misconduct investigations
  • Disciplinary action
  • Informal performance counselling

Often workers battle on for a long time after they receive their psychological injury, or don’t seek help straight away.  The final straw may be an action by the employer which is later considered to have been a reasonable administrative action.  Unfortunately, these workers are then excluded from compensation for medical treatment and time off work.

Some key points are:

  1. The action must be related to the conditions of your employment and not your everyday tasks.  So, giving you tasks to complete or telling you how to complete your work are generally not administrative actions.  However, performance appraisals, discussing your pay and conditions, or directing someone to not come to work until they are certified as being fit, are administrative actions.
  2. The administrative action must be taken in a reasonable manner.  This takes into account the actual action, how it was taken, the facts surrounding the action and how it impacts you. Basically, everything.  However, just because there was more than one way of doing the action does not mean it was not taken reasonably.

Tips for making a claim

As you can see, the reasonable administrative action rule provides a defence for employers when a worker suffers a psychological injury.  Given the very wide scope of the rule, it is imperative that claims are made at the right time, as the consequences for a worker are very harsh.

See our article Five Tips for Comcare and EML Submissions for our best tips.

Often, a claim which is appropriately made can show that a reasonable administrative action actually had no bearing on the injury, or that an action was not reasonably taken. Alternatively, a claim can be made before the employer can say it was caused by a reasonable administrative action.

What makes elringtons specialists in psychological injury claims?

Our workers compensation lawyers use their comprehensive knowledge of the Comcare claims system to the advantage of our clients.  Each member of our team has specialist knowledge and experience that makes them uniquely positioned to get you the best outcome in your Comcare psychological injury claim.

  1. Tom Maling was a mental health nurse.
  2. Gabby Bridger has a degree in psychology.
  3. Matt Bridger has been assisting workers for 30 years.

We offer free half hour consultations to discuss Comcare claims, so call our team today to book your appointment.

p: +61 2 6206 1300 | e: Info@elringtons.com.au 

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:

  1. ACT Mental Health Crisis and Assessment Team 1800 629 354 (http://www.health.act.gov.au/our-services/mental-health).
  2. Lifeline 13 11 14 (https://www.lifeline.org.au)

Further reading:

p: +61 2 6206 1300 | e: Info@elringtons.com.au