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:
The Committee recommends that psychological injuries be included under separate provisions within
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.
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.
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.
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
The Committee recommends that a psychological specialty medical assessment tribunal be
included on the list of specialty medical assessment tribunals