In Western Australia it is common for stress claims to be denied by workers compensation insurers. The claims are often denied on the basis that:
- there is no evidence that the worker has suffered / is suffering from a mental illness;
- the stress claim relates to relationship breakdown or factors external to the work; or
- 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).
The Approach of Workers Compensation Insurers to Stress Claims
From a practical point of view a workers compensation insurer’s first port of call will often be to send you to one of three psychiatrists in Western Australia who more often than not will state that workers are not suffering from a mental illness, the claim relates to circumstances outside the work 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 – this will lead to the claim being disputed by the workers compensation insurer.
In most cases workers compensation insurers will initiate a factual investigation which involves collecting statements from relevant witnesses. If those witnesses are not favourable to you 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 as they fear that their job may be in jeopardy.
What can I do to improve my prospects of success in a Western Australian stress claim?
To improve their 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 testify that the events the worker alleges caused the psychological condition actually happened and any observations about what the worker said or did at the time of the events.
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.
Foyle Legal has seen several clients who lodge their own WorkCover Conciliation Application and do not include enough documentation for a discussion of the claim. Thankfully the recent separation of WorkCover’s Conciliation and Arbitration functions make this easier to rectify. A lot of workers compensation stress claims are settled at Conciliation allowing workers to move on with their lives, other applications proceed to Arbitration where a final decision is made.
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.