WorkCover stress leave – all you need to know.

A person about to take WorkCover stress leave

Stress is a common part of many workers’ day-to-day life. However, sometimes that stress can reach a point where it becomes too much.

In some cases, you may be able to make a WorkCover claim if you need time off work due to stress.

How does a WorkCover claim for stress work?

In order to make a WorkCover claim relating to stress, you will need to show that you are suffering from a work related condition.

Stress, in and of itself, sometimes is not enough to have a WorkCover claim accepted.

However, many times if people go to the doctor when they are stressed, the doctor may diagnose something more than stress such as anxiety or depression or post traumatic stress disorder.

It can be very difficult to pursue a claim for WorkCover stress leave if you have not been seeking medical treatment for your condition.

This is because you need a diagnosable condition in order to have your claim accepted and the opinion of any doctors that have treated you, even if it’s your general practitioner, will be very important in establishing this.

The condition needs to have been caused aggravated by your employment.

Any part of the stress related condition that may be contributed to by personal or relationship problems, finances or health issues unrelated to work is not taken into account.

There’s a couple of other criteria that need to be met before you should considering making a claim for stress leave under WorkCover.

The first is that your employment must be connected to Victoria in some way.

This is established if you normally work in your employment in Victoria where you are based in Victoria for the purposes of your employment or if your employer’s main place of business is in Victoria.

The second is that you must be classified as being a worker under the act.

WorkCover claim process for stress related conditions

The WorkCover process to obtain stress leave is the same as if you suffered a physical injury at work.

You must complete a WorkCover claim form

When completing the claim form you should read each question under
“incident and workers injury details” carefully and ensure your answers are well thought out and accurate.

When answering how the injury occurred, you need to explain how your psychological injury is related to your employment (see below).

WorkCover stress leave claim form question 2

You should list all of the work stresses that you believed contributed to your condition. Exclude any of those that might not relate to work.

Try and keep your answers clear and straightforward. On the WorkCover claim form itself there is no need to be too detailed and try and over-explain things as there will be further opportunities down the track in which to do this if required.

You’ll see a question on the claim form that asks whether you’ve had a previous injury or condition that relates to the current injury or condition.

What this is asking is whether you have had a similar injury or condition, whether it is work-related or not (see below).

Whether previous injury or condition section on WorkCover form

So, if you for example had ever been to the doctor and had treatment for stress whether it was work-related or not, you should add that in here.

If you are in doubt as to whether something should be added, it’s best to list it at this point.

This is because if the claim is ever rejected and you elect to appeal the decision, your medical records will likely be obtained as will reports from doctors that have treated you.

You can read more about that here.

If the condition happened over time, rather than a specific incident, make sure to note that on the form.

An example of a condition that happens over time could one that is connected to reported acts of bullying towards you.

This page goes into more detail about obtaining compensation for workplace bullying.

An example of a specific incident could be if you were assaulted at work.

When did the stress condition occur

At the end of the form ensure to sign it and date it. You’ll notice that there is a employer lodgement details section, you do not need to complete this entire section.

Sign and date the claim workcover stress claim form

Once the claim form has been completed, you must provide it to your employer.

Your employer‘s job is to review the form and sign their section and then send it off to their WorkCover insurer.

Once the claim has been lodged, the insurer normally has 28 days from the date the claim is received to make a decision as to whether to accept it or not.

Because you are claiming stress leave (the insurer will refer to this as weekly payments), you should also provide a WorkCover certificate/certificate of capacity from your doctor. If you do not provide a certificate of capacity, the insurer is not able to pay you weekly payments.

You can read more about WorkCover certificates here.

Certificates of capacity are required to claim workcover stress leave

Typically with claims that relate to stress from work, the insurer will organise an appointment for you to be assessed by a doctor, usually a psychiatrist.

This doctor is called an independent medical examiner.

The doctor‘s job is to see you and provide an assessment and a written report that the insurer can use in determining whether to accept or reject your claim.

The doctor‘s job is not to provide treatment to you. One question that the doctor will be required to ask, in addition to a diagnosis, is what is your work capacity.

Another thing the insurance company might do is organise a circumstance investigation report.

This involves appointing a person to speak to relevant witnesses who may be able to shed some light on the circumstances that you say relate to your injury.

For example they may want to speak and take witness statements from colleagues or your Manager.

They will also contact you and ask whether you want to provide a statement.

You are not obliged to provide a statement in fact many people choose not to.

Keep in mind though that if you do not provide a statement, there is a decent possibility that your claim will be rejected unless there is support for your claim from other sources such as another employee.

If you do not provide a statement and the other people that are spoken to for the purposes of the circumstance investigation report suggest that the employer was acting reasonably, your claim is likely to be rejected.

One option here is to agree to speak to the investigator and provide a statement, but do not sign the statement that the investigator prepares for you straight away until your legal representative has had a chance to look over it first to make sure that it is accurate and says what you actually wanted to say.

If your claim is accepted, then you’ll be entitled to stress leave payments (weekly payments).

These will be calculated as follows;

An average of your earnings over the last 12 months are taken and this figure is called your pre-injury average weekly earnings.

  • For the first 13 weeks that you’re off on stress leave, the insurer will pay you at 95% of that figure.
  • After 13 weeks, you’ll be paid at 80% of that figure.

So keep in mind that in most cases, you will not be paid your full wage that you were on before lodging the WorkCover claim.

This is explored further on this page, along with in what instances you may be entitled to top up pay. 

The law says that you’re entitled to be paid weekly payments up until 130 weeks.

You can get weekly payments in addition to 130 weeks if you can show that you do not have a work capacity and that is likely to continue indefinitely.

The 130 week period is explored further in this article.

For the first 52 weeks, overtime and shift allowances are included in the calculation of your pre-injury average weekly earnings.

You’re also entitled to receive superannuation payments on top after 52 weeks. This page explains this further.

In order to continue to obtain stress leave from WorkCover, you need to obtain certificates of capacity from your doctor.

These certificates of capacity are not normal medical certificates. The certificates of capacity are specifically for the purposes of your WorkCover claim.

The certificates of capacity will comment on your ability to work. They will say that you can work your full on restricted duties, or you can work some modified duties – whether that’s a reduction in hours or a change in your duties or something else (e.g. avoidance of a certain person that might have been bullying you at work). The final thing the certificate can say is that you have a capacity for no work at all.

Certificate of capacity showing work capacity section

If your WorkCover claim is rejected, then if you wish to appeal the decision, you will need to lodge a request for conciliation.

Conciliation involves discussing the claim with a representative from the insurance company and your representative, if you choose to have one which we would suggest you do either in the form of a lawyer or WorkCover assist.

In order to commence conciliation, you need to complete and lodge a request for conciliation form.

Complete a conciliation form if your WorkCover stress claim is rejected

If you want to know what happens at a WorkCover conciliation, you can visit this page.

If your matter resolves at conciliation then you can be back paid any weekly payments that you would’ve been entitled to, if your claim was accepted at first instance (read more about how back payment works here).

If your claim is rejected, then you’ve got two choices.

If you wish to continue to pursue the matter, you can proceed to the medical panel which is a free process whereby you are assessed by a number of doctors in the one sitting. These doctors review the facts of the case and will make a decision as to whether your claim should be accepted or not.

The more likely outcome if your matter does not resolve it conciliation however is to go to the Magistrates Court.

The reason for this is because the medical panel cannot hear what deal with cases where there are factual disputes involved in many times when someone is claiming a stress related condition related to their employment, there are factual issues in dispute.

For example, one person may see something is reasonable while another person in the workplace may not.

That leads us onto a commonly used defence to reject stress related WorkCover claims:

The ‘reasonable management action’ defence

Once the claim is lodged, a commonly used argument by insurance companies to reject the claim is that the psychological injury that you have was caused by reasonable management action taken on reasonable grounds and conducted in a reasonable manner.

For example, it may be argued by the insurance company in conjunction with your employer that your claim should not be accepted because, even though you may be very stressed, that stress came about as a consequence of action that management took that was reasonable.

They may say that it arose as a consequence of you being disciplined, or you having an issue with your wage or hours.

If the insurance company seeks to use this defence to reject your claim, they must show that the action that was taken by them was on reasonable grounds and in a reasonable manner.

What else might I be entitled to for my stress related condition?

If you have an accepted WorkCover claim in relation to stress, you can obtain payment for any medical treatment that you might need.

Stress compensation payouts

You can also pursue what’s called an impairment benefit which is a lump sum claim where once your condition has stabilised in that it is not getting any better not getting any worse.

You will be assessed by an independent medical examiner who grades your condition. They will put a percentage figure on your condition.

To be entitled to impairment compensation for a psychological injury you need to be assessed as having a 30% or greater whole person impairment rating which in the scheme of things, is a very significant assessment. Most psychological injuries relating to work will not reach this threshold 30% level.

If you do happen to be assessed at 30% or greater whole person impairment, then you’ll be entitled to be paid approximately $80,000 as a pain and suffering payment. This payment will not impact your stress leave payments from WorkCover.

For every percentage point you are over 30%, this amount increases.

The final entitlement that you may have is what’s called a common law claim for damages.

This is another lump sum claim where you are taking action against another party, in this case your employer, for their negligence. You are alleging that their negligence contributed to your condition in someway

In order to succeed in this claim you need to show that firstly there was negligence on behalf of your employer.

Secondly you need to show that you suffered a serious injury as a consequence of that negligence. So your psychological condition needs to meet the threshold in terms of how serious it is.

If you did previously get assessed at 30% or greater then you’ll automatically be deemed as having a serious injury under the law and the discussion then will mainly centre around whether there was negligence in your case.

If you do not get assessed at 30% or greater then you will need to show that you have a serious injury via whats called the ‘narrative test’.

To put this in simple terms, you took a before and after picture as to how you were before this stress related psychological condition compare that to how you are now, the bigger the difference the more likely you are to be classed as having a serious injury.

If you succeed in a common law claim you can potentially be compensated for pain and suffering alone or pain and suffering and economic loss.

It is very difficult to provide an idea as to what you may be entitled to with a common law claim relating to psychological injury as each case is different.

However, this page should help give you an idea. It will also give you an idea about impairment claim amounts for psychological conditions.

Successful WorkCover claims for stress – examples

Example 1

Jennifer was employed in an administrative role at a large job and educational provider. After two employees in her department left, management requested that Jennifer take on a large proportion of her workload. 

Jennifer was initially reluctant to take on further work because she was already very busy and her department was understaffed.

After a couple of months she was struggling to complete all the work allocated to her. So she requested assistance from her employer. However, no assistance was forthcoming.

Over the next few months, Jennifer requested assistance on a number of occasions. Again, no assistance was forthcoming.

Jennifer was struggling with her growing workload. She eventually went to see her GP who told her that she needed to take a step back from work.

He provided her with a certificate of capacity allowing her to take a couple of weeks off work, which she did.

Towards the end of the two weeks, she didn’t feel like returning to work was a good idea, so she went back to see her doctor. Her doctor provided her with another certificate, allowing her to take another four weeks off work, which she did

At this point she lodged a WorkCover claim which was accepted by the insurance company. She was paid her weekly payments and medical expenses.

She started seeing a counsellor, which the insurer paid for.

After taking a couple more months off work, she returned to her old role. However, by this time, the employer had made adjustments to ensure that she was adequately supported and not swamped with work.

Example 2

Chris was employed by a transport company.

During the course of his employment, he was subjected to bullying and harassment by one of his managers.

He lodged a WorkCover claim for stress after seeing his GP, who recommended he do so.

The claim was accepted by the insurance company.

He took some time off work and received payment for lost income from the insurer. He also received payment of his medical expenses.

You can view more WorkCover compensation payout amounts here.

Do I have any other options in terms of stress leave from work without relying on WorkCover?

Yes. One option you have is to simply use your sick leave. Many people may have a significant amount of sick leave saved up if they’ve been long term employees of a company which they will likely never use. It can be a good idea to use this sick leave up as opposed to lodging a WorkCover claim.

Many people choose to go down this route and when it looks like they’re going to need more than a few days or a few weeks off work, that is when they decide to lodge a WorkCover claim for stress.

Some people may also elect to take annual leave if they do not have an adequate amount of stress leave saved up.

This is certainly not a solution that is recommended for anything more than say a few days here or there off work as your annual leave should not be used to take time off for medical related issues that are connected to employment, if it can be avoided.

That’s what sick leave and WorkCover payments are for.

You can read more about that here.

Is stress leave sick leave?

You can take time off from work due to stress and you can elect to use your accrued sick leave entitlement.

You can also take unpaid sick leave.

WorkCover stress leave is different. WorkCover is a seperate entitlement to your accrued employment entitlements.

Conclusion

If you need to take a step back from work because of stress or a similar condition, and that is connected to your employment in someway, keep in mind that you may have an entitlement to WorkCover stress leave (otherwise known as weekly payments).

Keep in mind however that stress, in and of its self, is not sometimes enough to have a WorkCover claim accepted.

Also, if you wish to be sure WorkCover claim for stress, you should insure to see your doctor, firstly to get treatment, but also because you will need to diagnose all condition of some description in order to A WorkCover claim accepted.

In order to pursue a WorkCover claim you need to complete the claim form.

Sometimes WorkCover insurance will reject stress claims but remember that you have options to appeal a rejection.

Keep in mind the reasonable management action defence which is sometimes used by the insurance company to reject claims.

If you have an excepted WorkCover claim for stress you may also in addition to income benefits also have an entitlement to the payment of medical and like expenses as well as to potential want some claims.

Finally, remember that you do not need to necessarily sure WorkCover claim if you wish to take a step back from work due to stress. You can elect instead to use any accrued sick leave or annual leave or long service leave.

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.

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

Written by the Work Injury Site team