Workplace Psychological Injuries

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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:

1. What psychological injuries are.
2. The exclusionary reasonable administrative action rule.
3. Causes of psychological injuries.

Workplace Psychological Injuries – Summary

• 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 eligible for workers compensation if COVID-19 has negatively effected your mental health while at work.
• You may be able to claim compensation for medical treatment, loss of wages, and a permanent injury, and in some cases domestic care and for your pain and suffering.
• We are experts in ACT, NSW and Comcare workplace psychological injury claims.

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.

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.

If you already had a diagnosed mental illness before starting your work, you may still 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.

What is the exclusionary rule?

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 performs an administrative action and this causes a psychological injury, then you may not be entitled to workers compensation such as lost wages and medical treatment.

Examples of administrative actions include:

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

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.

What can cause a psychological injury?

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.

COVID-19 and psychological injuries

Now, more than ever, workers are facing increased stress and pressures while on the job. WorkSafe Australia has released statistics showing that 19% of COVID-19 related workers compensation claims made in 2020 were mental health claims, this is not an insignificant number.

Many workers are dealing with constant change and uncertainty. Factors effecting workers mental health include:

• Ever changing Government safety guidelines
• Unprecedented workloads
• Increased health risks at work

It is unfortunate, though not surprising, that the increased levels of stress and anxiety we are seeing as a result of these pressures can cause burnout and psychological injury. If your work brings you into contact with a situation that is shocking or unsafe or your work is stressful and you are struggling to manage, you may also be able to bring a claim.

What makes elringtons experts in workplace psychological injury claims?

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.

Each member of our team has specialist knowledge and experience that makes them uniquely positioned to get you the best outcome in your psychological injury claim.

1. Tom Maling used to be a mental health nurse;
2. Gabby Bridger has a degree in psychology; and
3. Matt Bridger has been assisting workers for 30 years.

To discuss your claim, call our team today to book an initial 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
2. Lifeline 131114
3. Beyond Blue – phone: 1300 22 4636

For more information see:

• SafeWork Australia Factsheet on COVID-19 related worker’s compensation claims