A common theme of discussion when engaging in discourse about Workers Compensation in Australia is “Mental Health Injuries” or “Psychological Claims”. This topic has long been a flavour of the month, causing the most passionate dialogue in our arena, and has done so for the past two decades. Many commentators talk of the trend of psych claims in Workers Compensation programmes as being unstoppable. Often one hears that ‘x amount of years ago’ this was simply not the case.

Whilst the fact that there are significant amount of psychological injuries on organisations’ books as long term accepted claims is indisputable, the phenomenon is less a fad akin to the latest dance craze or popular phone app, and more a reflection of our society maturing and acknowledging the concept of mental illness as a diagnosable condition.

Long a taboo topic even amongst family and friends, today we have well and truly put mental health on the agenda and not only are we aware of it – we are actively addressing it, working towards widespread, catholic acceptance and empathy; with the intention of ultimately leading to a recovery.

As each new sports star or politician publicly declares their personal mental health experience, we are each day, becoming more and more accepting of mental health injuries as an every day occurrence, much like a slipped disc or lacerated finger.

The work of organisations such a Beyond Blue and other PBIs, together with Government initiatives (such as the GP mental health plan scheme) have brought mental health into the forefront and out of the shadows of shame and cover ups.

So how does this impact our Workers Compensation portfolio?

The general acceptance of the existence of psychological injuries lends itself to the acceptance of work related injuries that are no longer just physical. Has our society experienced an increase in the number of people suffering work related psychological issues, or are we just now, finally aware of them occurring, and trying to do something about it? One would be hard pressed to argue against that train of thought.

Legislation such as the Fair Work Act and more specifically the state Workers Compensation legislation account for issues relating to mental health, be they provisions for determination of liability or cases of discrimination. In Victoria the Workplace Injury Rehabilitation and Compensation Act references psychological injuries as being compensable when work related.

In a world where post traumatic stress disorders, adjustment disorders and anxiety disorders are valid and common diagnoses, organisations need to understand that these conditions will result in compensable Workers Compensation claims when the authority (here in Victoria for example) deem the cases to be significantly related to their employment.

From an OHS perspective the obvious call to care for staff and ensuring their emotional as well as physical well-being is not just admirable, it is common sense. However, OHS as a discipline is preventative by nature. Workers Compensation and Injury Management in contrast are reactive disciplines, which are invoked when active OHS has been unable to prevent an incident, or is irrelevant to it.

All organisations will be subject to accidents – that is why we call them ‘accidents’ after all. They are unplanned, often uncontrollable and purely random events. With many organisations working in spaces with exposed risk (Disability Services, Community Services, Correctional Services, Medical & Allied Health, Financial Services, etc.) the likelihood of having workplace incidents increase -consequently the likelihood of psychological incidents do as well.

Assuming your organisation has implemented the appropriate OHS initiatives to prevent staff exposure, a case of mental health issue can often be the result of a sudden event (hold up, abuse, catastrophic event), yet also possibly long term exposure (bullying & harassment, negligible management). It is these circumstances that are difficult to manage, with emotional impact not being easily identified. An MRI may detect internal damage of a physical nature, but emotional trauma needs to be first acknowledged, and then diagnosed by a mental health practitioner. Failure by the injured worker or their colleagues/managers to accept there may be an injury at all can severely hinder the recovery process, and of course ultimately the tenure of any claim itself; and as such its impact on costs (statistical case estimates, premiums, and associated organisation costs).

Assuming that an organisation is aware of its legal obligations as well as its social responsibilities, a worker suffering a mental health injury must first and foremost seek treatment. The existence of an Employee Assistance Programme greatly aids in this, and initial consultations can be sought prior to a physical appointment being facilitated. Ensuring the worker is under the care of a qualified practitioner means that as employers, we have applied our duty of care to our staff.

Once a worker is consulting with a practitioner, a diagnosis would be the next step. This point will indicate to us the capacity the worker has, if any, and any modifications or adjustments we may be requested to make to facilitate their recovery and Return to Work. Regardless of liability, the provision of a medical certificate requires action from the organisation, be it provision of personal leave, amendments to the workplace (where feasible) or internal review/investigation.

Identifying the cause of the trauma is now paramount as this will impact the liability and determination of the matter as being work related or non work related. Often diagnoses are clearly the result of a workplace attack or incident and an employer would not question this. Other times, the diagnosis may come as a surprise – sometimes seemingly out of nowhere. Cases of mismanagement, bullying, and other scenarios are often only first flagged upon receipt of a medical certificate for stress.

In these circumstances where employers have not foreseen or do not directly acknowledge the work-relatedness of the condition, the determination of liability by the insurance agent is the crucial process. Providing all relevant information in this case is of course essential, understanding that the process is also time sensitive. The agent may elect to include circumstantial investigations, independent medical examinations and other types of investigatory methods to aid them in making a decision. In my experience, based on the perspective of the employer, these actions need to be directed by the Injury Manager, ensuring all avenues are addressed to allow a fair decision to be made, after following through with due process.

The determination of liability can be significantly impacted if an employer is able to assist the agent to identify that the worker’s injury is not as a result of a workplace issue. Personal traumas, pre-existing disorders, etc. may be the cause and any documentation held by the organisation should be provided to the agent in order for them to make a comprehensive and informed decision.

Whilst the legislation (in this instance the WIRC Act) allows for compensation for work related psychological injuries, there is a division of the legislation that precludes employees from having their diagnosed condition accepted as compensable; whereby that condition is as the result of those actions by management which are deemed to be reasonable for an employer to undertake.

Workplace Injury Rehabilitation and Compensation Act – Section 40

(1)  There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one or more of the following—

(a)  management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker’s employer;

(b)  a decision of the worker’s employer, on reasonable grounds, to take, or not to take, any management action;

These actions include:

management action”, in relation to a worker, includes, but is not limited to, any one or more of the following—

(a)  appraisal of the worker’s performance;

(b)  counselling of the worker;

(c)  suspension or stand-down of the worker’s employment;

(d)  disciplinary action taken in respect of the worker’s employment;

(e)  transfer of the worker’s employment;

(f)  demotion, redeployment or retrenchment of the worker;

(g)  dismissal of the worker;

(h)  promotion of the worker;

(i)  reclassification of the worker’s employment position;

(j)  provision of leave of absence to the worker;

(k)  provision to the worker of a benefit connected with the worker’s employment;

(l)  training a worker in respect of the worker’s employment;

(m)  investigation by the worker’s employer of any alleged misconduct—

(i)  of the worker; or

(ii)  of any other person relating to the employer’s workforce in which the worker was involved or to which the worker was a witness; etc.

As noted in my previous article, documentation is key to effective workplace management. Should the diagnosed condition be resultant to any of the above, only in instances where the organisation can prove this (with documentation) may the claim’s liability be rejected. It should be noted that this does not mean the staff member’s condition is not true and valid, it just means that they cannot claim WorkCover for it, and must pursue other, self-funded options.

Strong workplace protocols in the form of policies, procedures and management accountability will ensure that when instances are not compensable, they will not be accepted, and your organisation will not be impacted by the high costs associated with psychological claims. Instances outside of these will most likely result in a compensable injury. In this situation, your proactive and strategic Injury Management must be on point, to ensure sustainable return to work, and minimal cost impact. Engaging your external Injury Management Consultant from the onset of the situation is advisable.

As discussed, some workplace incidents are unavoidable, meaning those that can be prevented must be, else annual premiums will continue to sky rocket, and the associated costs to your organisation – not to mention impact of staff morale – will also be greatly effected.

Organisations can implement simple strategies to best equip them to counter mental health incidents hurting their programmes:

  • provide a workplace that protects staff from environments and instances of potential harm;
  • screen potential employees and ask for declarations of pre-existing conditions. They may not be obligated to answer, however those that do can assist us in being best protected;
  • engage an Employee Assistance Programme provider to commence early interventions or even facilitate potential solutions;
  • ensure all managers are 100% compliant with internal documentation standards. Adherence to legislation, and appropriate documentation of all actions can well lead to application of section 40 of the WIRC Act;
  • consult with your expert Injury Manager. Even those circumstances that seem black and white are often in fact quite grey and your experienced consultant will be able to offer a different perspective to the matter and potentially minimise risk exposure;
  • have your finger on the pulse. A successful organisation is one that can gauge its staff and their sentiments, often identifying potential issues before they become significant, stopping them having detrimental influence. Observe any trends (either in house or industry wide), changes in staff mentalities or even those throw away comments which are often more weighted than one initially may think.

The truth of the matter is that Psychological Injuries and Claims will not become less prevalent, and most likely will continue to be more common place. As our society comes to further understand the human mind, and the emotions with which we operate; this deeper understanding will lead to a wider acceptance of the work-relatedness of internal mental health struggles.

In a world where our work loads are ever increasing and enhanced/challenged by the increasing adoption of multimedia and virtual workplaces; the pressures placed on staff gather momentum, only increasing the anxiety they experience. Lack of face to face engagement also brings into the fold disorders of separation, and alienation – with virtual performance management being a highly untested area in relation to workplace bullying/stress.

Mental Health injuries and claims may be a trend, but only because it is the truth of our society. It is a reflection of today’s modern world, and Workplace Management must adapt itself to cater for the contemporary society in which we live. White collar, labouring, service industry, and other sectors will only continue to see more cases of psychological injuries, and arming your organisation to best tackle these obstacles when they occur is the responsibility of any leading organisation that wishes to maintain productivity, staff retention, and cost effectiveness.

Please feel free to contact the author with any queries/comments in relation to this article.

Misha Wright-Rodionov

Senior Account Manager