Stress claims are a common type of workers compensation claim. In Western Australia it is common for stress claims to be pended (and then never accepted), denied or disputed by the workers compensation insurer. In these cases the workers compensation insurer will often issue either a:
- Insurer’s Notice that Liability is Disputed; or a
- Insurer’s Notice Where No decision About Liability.
Stress claims are often denied or pended on the basis that:
- there is no evidence that the worker has suffered / is suffering from a mental illness or work related stress;
- there is no evidence that the worker is incapacitated (unfit for work) due to a mental illness or work related stress;
- the stress claim relates to relationship breakdown or factors external to the work; or
- the stress relates to a prior psychological condition;
- the stress claim is excluded by Section 5(4) of the Workers Compensation and Injury Management Act 1981 which includes:
- the worker’s dismissal, retrenchment, demotion, discipline, transfer or redeployment; and
- worker’s not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and
- the worker’s expectation of a matter; or a decision by the employer in relation to a matter, referred to in paragraph (a) or (b).
Workers Compensation Insurers’ Approach to Stress Claims
Workers Compensation Insurer’s Psychological Evidence
When dealing with a workplace stress claim, a workers compensation insurer’s first port of call will often be to obtain your medical notes and then send you to one of their psychiatrists in Western Australia. These psychiatrists more often than not will state that:
- workers are not suffering from a mental illness, and/ or
- the claim relates to circumstances outside the work, and/or
- the factors stated above in Section 5(4) of the Workers Compensation and Injury Management Act 1981 are the main reason for the claim
As a result of the above statement(s) by insurer’s psychiatrist, the claim will be disputed by the workers compensation insurer.
Workers Compensation Insurer’s Witness Statement
In most cases workers compensation insurers will initiate a factual investigation which involves:
- collecting statements from relevant witnesses;
- collecting other information such as emails and documents regarding your employment history;
If those witnesses are favourable to you (i.e, not favorable to the insurer), then it will often be the case that the witnesses are not asked to sign a statement. It is often difficult for workers to obtain statements from other workers who work for the same employer as those workers fear that their job may be in jeopardy.
What Can I Do To Improve My Success In Stress Claim?
Workers’ Medical Evidence
Workers should immediately move to obtain additional medical evidence to counter that of the psychiatrist engaged by the insurer. Foyle Legal can suggest a suitable psychiatrist, in addition you should obtain your general practitioner notes and notes from any psychologist or counsellor you have seen concerning your symptoms arising from your work.
It is important to realise that if the insurer has these notes, then they have an obligation to provide them to you under Section 180 of the Workers Compensation and Injury Management Act 1981.
Workers’ Witness Statement and Evidence
Injured workers should generally collect all evidence of the circumstances that led to your injury at work including any emails, photographs or sound recordings.
Workers should also write down as much as they can regarding the circumstances that lead to their accident and then meet with a lawyer so that a witness statement can be prepared.
Witness statements are very important. If an injured worker makes a statement, and it can be proven that this statement is false, then the credibility of the injured worker may be undermined.
Witness Statements from Other Witnesses
To improve your prospects in a personal injury claim workers should immediately contact witnesses to obtain a brief statement from them on friendly terms if this is possible. The statement should:
- State the name of the witness;
- State how the witness knows the injured person (e.g. I have worked with Jane at J Group Pty Ltd as a kitchen hand for five years);
- State what the witness remembers about the claim (e.g. I remember that on 5 May 2019 I was sitting at my desk. Jane was watering the plants at the office when John Cane entered the room and shouted ‘Jane, I know you want my job, you’re never going to get it Jane. I remember at that time Jane broke down crying and told me she needed to leave work).
Witness statements are very important. If a third party witness makes a statement, and it can be proven that this statement is false, then the credibility of the third party witness may be undermined.
WorkCover WA is the dispute resolution body (like a court but less formal) regarding workers compensation in Western Australia. The process is a two stage process:
- At the first stage, Conciliation, the injured worker, employer, and workers compensation insurer try to resolve the matters in dispute by negotiation and with the assistance of a Conciliation Officer; and then
- If the matter is not resolved at Conciliation, it proceeds onto Arbitration, where a formal decision is made by an Arbitrator concerning liability for the workers compensation claim.
Workers Compensation Stress Claim – How to Be Successful?
The workers compensation law is very technical and it is hard to make a proper WorkCover application without a sound knowledge of the law. Comparing to physical injury claims, workers compensation stress claim is highly specialized and it is an area that not all workers compensation lawyers will take on. A good workers compensation lawyer specialises in stress claim can be vital to your workers compensation stress claim.
Foyle Legal has assisted hundreds if not thousands of people with WorkCover WA proceedings on a no win no fee basis and we help you to obtain the evidence you need concerning your claim.
At Foyle Legal your first attendance is obligation free and we can help to explain what you need to do to get the most our of your claim.
This article is general information based on the experience of the author and should not be taken as legal advice applicable to your specific situation. Should you wish to discuss your workers compensation stress claim please call Foyle Legal for an obligation free discussion.