WorkCover psychological injury claims

Workcover psychological injury

If a person suffers a psychological injury related to their employment, they may be entitled to WorkCover benefits, just as if they had suffered a physical injury.

These benefits include: the payment of medical and like expenses, weekly payments, an impairment benefit lump sum and a common law lump sum for your psychological injury.

The rest of this page will explore the criteria that you must meet in order to have a WorkCover psychological injury claim accepted, how to lodge a claim, and what your entitlements are if your claim is accepted.

Note that references to psychological injury on this page have the same meaning as psychiatric injury or mental injury.

What are the tests to have a WorkCover claim for psychological injury accepted?

When it comes to psychological injuries, it’s not as simple as having a psychological injury that is in some way connected to your employment.

There are two tests – one of which you must satisfy – in order to have your claim accepted.

These tests are set out in the Accident Compensation Act and Workplace Rehabilitation and Compensation Act.

Which test applies to you depends upon when your psychological injury occurred.

For clarity, we’ve referred to the tests as the ‘old test’ and the ‘new test’.

Significant changes were introduced in 2024, which we call the new test.

Test number 1 – The ‘old test’

The test which has been in operation for some time – referred to on this page for ease of reference as the ‘old test’ requires those that wish to claim WorkCover benefits to satisfy the following:

  1. That you have a diagnosable psychological injury.
  2. That the injury does not arise out of reasonable management action taken in a reasonable manner.
  3. That work was a contributing factor to the injury.

Lets look at the above criteria in more detail.

1. Diagnosable psychological injury

You must have a diagnosable injury.

You must have a psychological injury that is diagnosed by a medical practitioner in accordance with Diagnostic and Statistical Manual of Mental Disorders (DSM)

2. Reasonable management action taken in a reasonable manner

Section 40 (1) of the Workplace Injury Rehabilitation and Compensation Act 2013 makes it clear that if the psychological injury occurred wholly or predominantly by any one or more of the following, you are not entitled to have a WorkCover claim accepted:

(a) management action taken on reasonable grounds and in a reasonable manner by or on behalf of your employer;

(b) a decision of the your employer, on reasonable grounds, to take, or not to take, any management action;

(c) any expectation by you that any management action would, or would not, be taken or any decision made to take, or not to take, any management action.

3. Contributing factor

Work needs to be a contributing factor to your psychoogcial injury. It does not need to be the only factor or the predominant factor, but it does need to be a contributing factor.

When does the above test apply?

The above test applies if your psychological injury occurs prior to 31 March 2024.

If your injury occurred on or after 31 March 2024, then there’s a different test that applies, which is detailed below.

Note: if you sustained a mental injury in December 2023, you could still lodge a claim after 31 March 2024 that that mental injury and it would be the old test that would apply.

What will happen with psychological injury that is caused both prior to the new test commencing and continuing after the new test comes into effect remains to be seen.

The reason for the uncertainty is that the new test, as at the time of writing, has not long been introduced. As such there are a number of matters relating to the new test which will be clarified as time goes on.

Test number 2 – The ‘new test’

The test that applies if your psychological injury occurred on or after 31 March 2024 is as follows:

  1. That you have a psychological injury that causes significant behavioral, cognitive or psychological dysfunction.
  2. That the psychological injury does not arise out of reasonable management action taken in a reasonable manner.
  3. That work was the predominant cause of the psychological injury.
  4. That the psychological injury was not caused predominantly by work related stress or burnout that has arisen from events that may be considered usual or typical and reasonably expected to occur in the course of the worker’s duties.

Lets look at each of the requirements of the test further.

1. Significant behavioural, cognitive or psychological dysfunction

The new test requires a person to have a diagnosable injury.

This means a psychological injury that is diagnosed by a medical practitioner in accordance with Diagnostic and Statistical Manual of Mental Disorders (DSM)

There also needs to be a “significant” change.

What does significant mean and who determines what is significant?

Well, given the test has not long been introduced, it is currently not known who will decide what constitutes a “significant” dysfunction.

It does seem likely however that this will be something that will be reviewed by the courts who will clarify what this part of the test requires.

Initially, it seems likely that the WorkCover insurers will have the ability to determine whether or not there is no “significant” dysfunction.

2. Reasonable management action

This part of the new test is the same as the old test.

That means that the psychological injury, in order to be compensable under the WorkCover system, must not be caused by reasonable management action taken in a reasonable matter by an employer.

3. Predominant cause

Under the new test, a persons employment must be the predominant cause of the psychological injury.

It is not enough that a persons employment be a contributing factor, which is the requirement under the old test.

Under the old test, you could have a number of different causes of your psychological injury which may not have been related to your employment, and your claim could still have been accepted if your employment was a contributing factor.

Lets look at the term ‘predominantly’ for a moment.

Predominantly is not a term that is defined in the WorkCover legislation.

And as with the definition of significant (relevant to part one of the new test), this definition should get clarified as time goes on.

For guidance purposes, the explanatory memorandum of the amendments states that predominantly ‘is intended to take it’s ordinary meaning, relative to the strongest or largest contributing factor relative to all other contributing factors.’

For now, if work is not clearly the major cause of the psychological injury, the claim will likely be initially rejected.

4. Not caused predominantly by work related stress or burnout

A claim related to a psychological injury caused by work related stress or burnout, that has arisen because of events that could be considered usual or typical and reasonably expected to occur in the course of your duties will likely be rejected under the new test.

There is however one exception to this.

Where the stress or burnout is caused by traumatic work events that have been experienced by the you that could be considered to be usual or typical and reasonably expected to occur in the course of your duties.

For example, emergency service workers may be able to claim in relation to stress or burnout because it is acknowledged that their line may include exposure to traumatic events.

Considering ‘stress or burnout caused by events that may be considered usually or typical and reasonably expected to occur’ – if you were, for example, working a small number of increased hours or you had a small increase in workload which lead to the psychological injury, it seems likely that any claim for psychological injury would be rejected as the additional hours could be considered to be usual, typical and reasonably expected to occur.

In contrast to this, if you had a massive increase in work hours and a massive increase in your workload, such that it might not be considered usual or typical and reasonably expected to occur, this might be a different story.

As time goes on, there may be different circumstances where stress or burnout claims will be accepted, even with the bullying or harassment exception does not apply.

Secondary psychological injuries

If your psychological injury arose secondary to – or as a consequence of a physical injury only, your claim is very likely to be rejected.

This applies to both the old test and the new test.

Lodging your WorkCover claim for psychological injury

In order to lodge a claim, the process is a very similar one to lodging a claim for a physical injury.

Keep in mind that there are time limits to lodging a claim, which you should familiarise yourself with.

You should complete the WorkCover claim form, ensuring to carefully complete it.

The WorkCover claim form that you need to use is the same one that is used for a physical injury.

If you have any questions in relation to the claim form or you’re not sure what to write, ensure to get advice. You can ask us if you need assistance.

You should also obtain a certificate of capacity from your doctor should you wish to claim weekly payments (and you should continue to obtain certificates if your psychological injury impacts your ability to work and you wish to claim weekly payments).

If you don’t want to claim weekly payments and only wish to claim medical expenses, then you do not need to obtain certificates of capacity.

Note, that the acceptance of the initial claim only entitles you to medical and like expenses and weekly payments.

It does not automatically entitle you to lump sum compensation.

In order to obtain lump sum compensation for psychological injury, such as a common law claim for psychological injury, different claims/applications need to be made.

Once you have completed the claim form, it must be lodged.

Related: where to send the WorkCover claim form.

The WorkCover insurer will assess your claim and then provide you with a decision – either accepting or rejecting your claim.

If your psychological injury claim is rejected, you will still continue to receive 13 weeks of reasonable medical and like expenses such as medication and treatment but you will not receive benefits like weekly payments or lump sum compensation.

Provisional payments for medical and like expenses

Regardless as to whether your WorkCover claim is accepted or rejected, once you’ve lodged a WorkCover claim for psychological injury you’re entitled to have 13 weeks of reasonable medical and like expenses paid.

This is something that applies only to psychological injury claims and not claims for physical injuries.

This means you can claim treatment expenses, such as GP attendances, psychiatrist or psychologist attendances and medication.

This does not extend to weekly payments, however. In order to claim weekly payments, your claim will need to be accepted.

If your claim is accepted

If your claim is accepted, then you’re entitled to the payment of medical and like expenses on an ongoing basis.

Additionally, if your ability to work has been impacted by the psychological injury, you’re entitled to claim weekly payments.

You may also have an entitlement to an impairment claim if you have a permanent impairment.

And in some cases, you may have an entitlement to a common law claim for your psychological injury.

If your claim is rejected

If your claim is rejected, you can contest the decision of the insurer. As a first step, you can ask the insurer to perform an internal review.

We generally don’t recommend that, however. Particularly in instances of rejected claims because in our experience insurers will rarely change their decision to reject a claim.

We would recommend pursuing the matter to conciliation, which can be done by the lodgment of a conciliation request.

Beyond that, there are options to pursue a rejected claim.

Conclusion

If you suffer a psychological injury related to your employment, you may have an entitlement to WorkCover benefits.

However, on order to have a WorkCover claim accepted, it is not enough to simply have a psychological injury that is related to your employment.

You must satisfy one of the two tests in order to have your claim accepted. Which test applies to you depends upon when your psychological injury occurred.

In order to initiate a claim for psychological injury, you must complete and lodge a WorkCover claim form.

Whether your claim is accepted or not, you’ll have an entitlement to have provisional payments (medical expenses) paid to you for a period of time.

If the claim is accepted, then you’ll have an entitlement to WorkCover benefits. If the claim is rejected, then there are options open to you to appeal that rejection.

Please keep in mind that the information contained on this page should not be considered legal advice and no content on this site should replace the need to obtain advice tailored to the specific facts of your case. The facts of a case can significantly alter the advice that can provided. This site only provides general advice. Read more here.

To contact Michael or Peter call 1800 746 442 or email [email protected].

Written by the Work Injury Site team