The Ongoing Battle to Retain Psychiatric Injury as Compensable in Workers Compensation Schemes

The Ongoing Battle to Retain Psychiatric Injury as Compensable in Workers Compensation Schemes

September 10, 2013

It is a continuing struggle to make sure that people who experience a psychological injury are treated in a similar way to those who have a physical injury. The battle has already been lost in New Zealand to some extent. It was salutary reading the report of the Inquiry into the Operation of Queensland’s Workers’ Compensation Scheme published in May 2013. I have posted an edited version of this Report in “publications”. The Inquiry Report describes in some detail two particular issues, bullying and people making “stress claims” when they are faced with managerial action that they do not like. The paper is worth reading to see what the various participants have submitted. In particular there is a recommendation that the definition of psychological injuries be amended to include two types of psychological injuries identified as category A and B, the Committee is effectively recommending that criterion A for post traumatic stress disorder be category A and the rest be category B requiring a high level of proof for acceptance of such a claim! (see recommendation 11).

I have also extracted from this Report a table describing the Exclusionary Provisions for Psychological Injuries in the Commonwealth, States and Territories and New Zealand, WorkSafe Australia 2012

The recommendations are as follows:

Recommendation 10

The Committee recommends that psychological injuries be included under separate provisions within

the legislation.

Recommendation 11

The Committee recommends that the definition of psychological injuries be amended to include the

two types of psychological injury identified as category A and B above in section 4.5.

Section 4.5 The Committee considers that psychological injuries can be defined as two types:

A. Where a psychological injury is attested to by medical evidence and it results from an event

or series of events that deliver such significant trauma that it would reasonably be expected

it would impact adversely in the short, medium and long term on a significant proportion or

the majority of the population were they exposed to such significant events.

Examples of such events would include serious work related assault occasioning bodily harm

and in particular residual physical disability. Other events, that if supported by medical

evidence of ongoing psychological injury, may include people exposed to severe physical

threat such as hold-up, work place invasion such as robberies or where workers are exposed

to victims of road and rail incidents in the course of their employment.

B. All claims other than those identified above. This would include claims such as workplace

harassment and those types of claims where it is anticipated it would only produce a lasting

psychological injury to people whose pre-existing psyche is vulnerable. This type of claim is

more difficult to assess because the events around them are likely to be influenced by nonwork

psychological stresses, pre-existing psychological issues such as substance abuse, preexisting

depression, personality disorder, bipolar disorder etc.

The Committee considers that the level of proof required for acceptance of a claim under

the second type of claim should be quite high.

Recommendation 12

The Committee recommends that the current exclusions for reasonable management action be

removed and be replaced with specific exceptions for normal work place practices such as:

a) where action is taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker

provided that action is taken in a reasonable way;

b) where a decision is made not to award or provide promotion, reclassification or transfer of, or

leave of absence or benefit in connection with, the worker’s employment provided the decision is

made in a reasonable way;

c) action by the Authority or an insurer in connection with the worker’s application for


AND the definition be amended to be ‘the major significant contributing factor’ rather than the

current ‘a major significant contributing factor’ for Category B type psychological injury claims.

Recommendation 13

The Committee recommends that the Queensland Mental Health Commission be directed to

undertake a research study regarding the impact of the legislative changes if they are adopted and

that this study must directly inform the next review of the Workers’ Compensation Act.

Recommendation 14

The Committee recommends that the Attorney-General should initiate a review of the Work Health

and Safety Act 2011 with a view to considering whether recompense to victims of workplace bullying

could be made through mechanisms in that Act rather than through the Workers’ Compensation


Recommendation 23

The Committee recommends that a psychological specialty medical assessment tribunal be

included on the list of specialty medical assessment tribunals




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