Can I claim compensation for a work-related mental illness?

The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill was introduced into Parliament in late August 2019. The Bill was introduced, in part, to amend the Workers’ Compensation and Rehabilitation Act 2003. On Tuesday 22 October 2019, the Queensland Parliament passed the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill making several amendments according to recommendations proposed by Professor David Peetz.

In 2018, Professor Peetz was appointed to conduct the second review of the scheme after which 57 recommendations were made including 15 legislative amendments. The amendments will be introduced progressively beginning 30 October 2019 to 1 July 2020.

The Bill implemented several amendments, including a change to the definition of ‘psychological injury’ according to the recommendation made by Professor Peetz. The definition of ‘psychological injury’ was reverted to a previous definition whereby a workers job is now considered to be a ‘significant contributing’ factor, rather than ‘the major’ factor.

This amendment came into effect on 30 October 2019. The change in wording, albeit slight, highlights the connection of an individuals job to their psychological or psychiatric injury.

A test for psychological and psychiatric injury is conducted to ascertain whether the injury arose “out of, or, in the course of” employment. The Bill now enforces recommendations that vulnerable individuals, who have a psychological or psychiatric injury, are to receive early intervention and better support to minimise the impact and duration of the injury.

Statistics

• Poor mental health currently costs Australian businesses approximately $6 billion per annum.
• The Australian Institute of Health and Welfare estimates that around 45% of Australians between 16-65 will experience mental illness at some point in their life.

The recent amendments could greatly impact companies that have a high volume of psychiatric and psychological injuries but ultimately means that those workers will receive the care they need as early as practicable. Additionally, the amendments now mean that all claims will be under full Work Cover entitlements. Overall, the changes could result in an increase in approved compensation claims and an increase in successful claims.

The ‘Gig Economy’ and Compensation Entitlements.

The gig economy has been thriving in Australia and New Zealand since the global financial crisis, with temporary, contract and freelance work now a very common method of supplementing income. The Uber driver is an example of a ‘gig economy’ worker.

There are many positive aspects to working in the ‘gig economy’ however, many workers harbour unrealistic expectations about their earning capacity, which ultimately leads to increased mental strain and anxiety.

The Queensland Government recognises that injured gig workers do not have the same protections offered by Queensland’s worker’s compensation scheme.3 There is no single ‘gig’ industry, and ‘gig’ workers can be found across most industries throughout Queensland, and therefore claims are assessed on individual merit.

According to the Consultation Regulatory Impact Statement- Workers’ compensation entitlements for workers in the gig economy and the taxi and limousine industry in Queensland, gig workers commonly have existing socio-economic vulnerabilities and other additional pressures such as:

• Responsibility for their insurance, superannuation and tax.
• No access to entitlements.
• ‘At’ or ‘below’ the standard pay rates typically enjoyed by a worker in an employed capacity.
• Lack of access to union support and therefore lack bargaining power, placing them at increased risk of exploitation.

Under the revised ‘Bill’, insurers now have an obligation to ensure that workers who are claiming for psychiatric or psychological injury receive ‘reasonable services’ such as:

• Mediation services
• Counselling services
• Medical treatment
• Medication
• Nursing care

‘Reasonable services’ are to be provided to the claimant, by the insurer, until such time that the claim is either approved or rejected. Decisions are generally made promptly to facilitate a fast and safe return to work.

Conditions for a Successful Compensation Claim.

Insurance or compensation claims are assessed according to very specific conditions. In general, the injury must have been caused by, or exacerbated by the individuals’ job or workplace, as a result of a single incident or may have developed insidiously over time. There may be other contributing factors, the circumstances of which would need to be assessed on an individual basis.

Examples of contributing factors include:

• Armed robbery
• Violence
• Workplace bullying
• Harassment
• Excessive workload

Psychiatric or psychological injuries that are related to the workplace can impact every area of a workers life. The sooner an injured worker files a report, the better, however, workers with psychiatric or psychological illness are vulnerable individuals who often require professional help to navigate the complexities of the claims process.

Unfortunately, compensation claims for psychological illness are often rejected due to the difficulties in ascertaining whether the injury was caused by work or other factors. People who have a psychological illness or injury are strongly encouraged to seek professional legal advice to discuss their case.

References

1. What you need to know about the latest changes to the Workers’ Compensation scheme in Queensland – National Retail Association. (2019). Retrieved 4 November 2019, from https://www.nra.net.au/nra-legal/what-you-need-to-know-about-the-latest-changes-to-the-workers-compensation-scheme-in-queensland/
2. Work-related psychological health and safety: A systematic approach to meeting your duties. (2019). Retrieved 8 November 2019, from https://www.safeworkaustralia.gov.au/doc/work-related-psychological-health-and-safety-systematic-approach-meeting-your-duties.

Consultation Regulatory Impact Statement-Workers’ compensation entitlements for workers in the gig economy and the taxi and limousine industry in Queensland Workers’ Compensation and Rehabilitation Act 2003. (2019). Retrieved 5 November 2019, from https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0011/177347/ris-gig-taxi-limo-industries.pdf

Connect with us

Find Trilby Misso Lawyers on Facebook, Instagram and YouTube.