WorkCover - Stress Claims
This information sheet can be downloaded in PDF format via the link at the bottom of the page.
What the NTEU can do to support you:
-
assist you to complete your Claim for Compensation, so that you
do not inadvertently give the WorkCover Authority an excuse to
reject it unfairly;
-
advise you whether the limitations that apply to some
stress claims may affect your claim (see attachment);
-
provide you with an overview of the WorkCover system and answer
any questions you may have about your entitlements, and what to
expect as your claim proceeds;
-
assist you to prepare for your visit to a WorkCover
psychiatrist, including the preparation of a
brief dot point summary of the causes of your
stress;
-
liaise with your treating doctor about how they can support
your claim;
- discuss with you whether it is advisable for you to talk to a WorkCover investigator ( such a meeting is not compulsory, although it may be presented as though it is).
There are time limits on how long WorkCover can take to decide your claim, so the process is not drawn out.
Most claimants will have a response within no more than 38 days of giving the claim form to their employer.
If your claim is rejected it is up to you to decide whether or not an appeal is worthwhile. The union can assist you to make this decision. We can also assist you to prepare for the appeal if you decide to proceed.
March 2006.
EXTRACT FROM ‘WORKCOVER’, A VICTORIAN TRADES HALL PUBLICATION, FEBRUARY 1996
"A WORD ABOUT STRESS CLAIMS
There are limitations on stress claims under the Accident Compensation Act [s82 (2A)] that can give rise to misunderstandings and to disputes. A worker will not have a successful claim if the injury results ‘wholly or predominantly’ from:
-
reasonable action taken in a reasonable manner by the
employer to transfer, demote, discipline, redeploy,
retrench or dismiss the worker; or
-
a decision of the employer, taken on reasonable
grounds, not to promote, reclassify, transfer,
give leave of absence or other benefit to the worker;
or
- expectation of such action or decision.
Many people make the mistake of thinking that stress related injuries cannot be claimed under WorkCover. This is not so.
Injuries ‘consisting of an illness or disorder of the mind caused by stress’ which result from workplace stressors such as poor shifts, excessive workloads, lack of control, poor supervision, sexual harassment, occupational assault or bullying are compensable injuries. Even if there are circumstances which include disciplinary measures (as may well be the case) as one element, the condition may still be compensable.
Example: It is not uncommon for a worker who is suffering from a work related stress condition to be unreliable at time keeping, lacking in concentration or exhibiting inappropriate behaviour, all of which could potentially lead to disciplinary measures being taken. Whilst the disciplinary measures may exacerbate the stress related condition, there is no way in which the condition could be said to arise wholly or predominantly from the disciplinary measures – rather, the disciplinary measures resulted from the stress.
It should also be noted that there are major qualifiers to the limitations:
-
the employer’s actions must be reasonable;
and
- their actions must be taken in a reasonable manner and on reasonable grounds.
Union representatives are used to evaluating the reasonableness or otherwise of transfers, demotions, redeployment, retrenchments, disciplinary procedures and dismissals.
If a claim is disputed and the stress arose ‘wholly or predominantly’ from one of these industrial situations, they will need to evaluate the reasonableness of the employer’s actions and the manner in which they were taken. If there were not reasonable grounds for taking the action or reasonable procedures were not followed, the injury is still compensable.
Often the union will have been involved with the workplace concerned, in which case the union already knows the background. It may have correspondence entered into with the employer at the time which will show that the union complained then of the employer’s actions.
At a Conciliation Conference about a dispute of this kind, most Conciliation Officers would welcome the input of a union official to help to clarify the situation."