Keeping You Safe @ Work
FACT SHEET #1 Stress Claims and Workers Compensation January 2010
With any Work Cover claim an applicant must firstly show that they have suffered an ‘injury’ and secondly that the injury was ‘work related’. However, with ‘stress claims’ (psychological injury) it must also be determined:
Work Related Stress is prevalent across our sector.
i) Whether the injury was caused by management action; ii) If so, whether that action was reasonable; and iii) Further, if the action is reasonable, whether it was undertaken in a reasonable way.
Claims for Workers Compensation for Stress-related injuries are not straightforward.
Where an injury is deemed to be caused by reasonable management action taken in a reasonable way, WorkCover is obliged to reject the claim. It is important to note that rejection on this basis does not mean an injury has not been sustained – but it does mean that the injury has been deemed to be not work related.
The burden of proof of injury remains with the worker.
What goes on the claim form becomes the basis for the investigation of the claim and it is this information that can mean the difference between the acceptance and rejection of a claim. We urge members to contact our Union for advice prior to lodging any claim for workers compensation.
We can provide invaluable assistance to members when they are preparing a claim.
Once a stress injury occurs, it is important that members consider the following: 1. Lodge Your Claim as Early as Possible – Workers have six months from the date their injury is diagnosed as work related to lodge a claim. If the claim is lodged more than 28 days after the injury is diagnosed, workers will be asked to explain why there has been a delay. Workers can lodge an “injury notification” with WorkCover prior to submitting the claim. This is useful where members are not able to deal with the claims process at the time of injury and protects the lodgment timeframe.
ACTION 2. Always Check the Paperwork – It is necessary to obtain a QComp Medical Certificate from a medical professional. In doing so, make sure the diagnosed Prior to submitting any condition and its cause are recorded correctly on each certificate received. claims for Workers WorkCover must always have a current QComp Medical Certificate from claimants Compensation, it is to keep the claim “alive”. important that members contact us for advice and 3. Always Respond to WorkCover’s Requests in Writing – This can be done by assistance fax or email. WorkCover now actively encourage all claims activity by phone, saying this makes the scheme “more accessible” to workers. However, they record what is said as file notes in their words, rather than the claimants. It is far better to have the context of these comments recorded in a controlled way.
CONTACTS QIEU Phone: (07) 3839 7020 Fax: (07) 3839 7021 Freecall: 1800 177 937 Email Enquiries: email@example.com Internet: www.qieu.asn.au
4. Be Aware of the Decision Making Timeframe – WorkCover have 20 business days to determine a claim. If they need more time, they must advise of this in writing and they must advise why. 5. Focus on the Event – In reporting the cause of a stress injury, ensure the focus is on the event, rather than how it was dealt with. For example, if the stress was caused by bullying and intimidation from colleagues or students, ensure that the focus is on the behaviour, rather than the way the employer dealt with it. 6. Minimise the Factors – WorkCover require claimants to nominate the contributing “factors” to stress-related injuries as part of their statement to WorkCover. Many members make the mistake of thinking that more is better. Some precedents infer that every factor listed as relevant to the injury needs to be proven, so the fewer factors nominated the better. One factor is ideal, but it needs to be a factor that can be proven and, where possible, a factor that does not involve management action.
7.. The Burden of Proof – The onus of proof of injury always rests with the worker. For management action claims, this means that while the employer may not have acted reasonably, unless the claimant can prove otherwise, the claim will be rejected. Claimants must demonstrate that they have discharged their obligations in reporting incidents and have abided by any relevant processes in the workplace. For example, if a claimant states that the injury was caused by the inaction of management, unless the claimant can show that every opportunity was given to management to address the situation, it may not be deemed unreasonable. Supporting documents should be offered and supporting witnesses to events nominated. 8.
Natural Justice – If WorkCover obtain information from other witnesses or from the employer, claimants are entitled to a copy of that information and a further opportunity to respond prior to a decision being made on the claim.
Making sure members understand the workers compensation claims process will ultimately improve the member’s ability to manage both the claim and the injury: Injury Occurs
Seek medical treatment and follow medical advice Obtain QComp Medical Certificate from your doctor Contact your Union for industrial advice as soon as possible prior to lodging any claim Commencing Claim Process
Claims must be lodged within six months of a work-related diagnosis and within 28 days to ensure full entitlement Claims can be submitted online, via fax/post, email, via the employer, via a doctor or by phone (not recommended) Once claim is submitted, a claims officer will establish contact within 48 hrs Claimants should seek relevant cut-off dates for statement and evidence submissions Claimants should advise of intention to respond to any employer information that is provided to WorkCover
Prior to submitting any documents to WorkCover, seek Union advice The statement should be a factual chronology of events as they occurred Gather and provide any supporting documentation Nominate relevant, reliable and direct witnesses, not third party witnesses Write a factual response to any documents provided under Natural Justice Keep copies of all documents submitted
WorkCover will gather information from the claimant, from witnesses and from the employer WorkCover will then assess this information to reach their decision on the balance of probabilities, with due attention paid to the claimant’s burden of proof of injury
Decision must be made within 20 business days from lodgment of claim Continue to follow all medical advice Keep records of medical expenditure
Awaiting the Decision
Submit medical expenses for reimbursement Ask your Union to monitor the claim as it progresses
Once advised, submit a written request/email to the claims assessor, seeking the statement of reasons for the decision and a full copy of the claim file Seek advice from your Union on lodging a QComp Application for Review within 3 months of the WorkCover decision
QIEU can assist members with submitting statements and advising of what evidence will be needed to support the claim. WorkCover will not tell claimants of their right to seek advice, nor will they necessarily advise that claimants have a right of reply to the information they gather. These aspects are vital in stress related claims, and if members involve their Union from the outset of the claim, the appropriate advice can be given to significantly increase the chances of claims being accepted. C:\Users\bhogan\Desktop\Whswc001.doc