When your job causes you to experience mental illness, the distressing effects can feel overwhelming and lead to other health concerns like severe sleep deprivation and anxiety.
In South Australia, the workers’ compensation scheme may provide financial and medical support to workers who have suffered a psychiatric injury because of their employment. However, these claims can be notoriously difficult for workers to manage due to their complex legal nature.
To succeed in a psychiatric injury claim in South Australia, there must be a clear connection between the psychiatric injury and employment. That is, the injury must arise out of or in the course of employment.
A psychiatric or psychological injury is often referred to in legal terms as mental harm.
The rules for mental harm claims are different than those for physical injuries. They are also constructed in far more rigorous terms.
This article is designed to help you understand your rights to any potential entitlements under the South Australian scheme, along with the kind of evidence that will be needed to prove a claim. This information is not a substitute for legal advice, and we strongly recommend discussing your circumstances with an experienced workers’ compensation lawyer.
What is mental harm?
Two types of mental harm are recognised under the workers’ compensation legislation in South Australia:
- Pure mental harm– this refers to a psychiatric injury that is not secondary to a physical injury. For example, you may have developed a post-traumatic stress disorder (PTSD) after exposure to a traumatic workplace incident yourself or as a witness. Another example; being subjected to continued bullying, harassment or other unacceptable psychosocial behaviour in the workplace. An injury can also develop where demands on your capacity to do your work is unattainable either due to the workload or the deadlines set.
- Consequential mental harm– this refers to a secondary psychiatric injury that arises from a compensable physical injury. For example, a worker suffers a back injury at work. This injury then impacts their daily life to the extent that they suffer from a psychiatric injury. This may be due to pain being experienced and / or the mental anguish over financial stress or the worker’s ability to go back to their job, especially if it is physically demanding work. This type of mental harm frequently carries a diagnosis of adjustment disorder and may include anxiety or other depressive symptoms.
The key distinction between pure mental harm and consequential mental harm is the cause of the harm.
Qualifying for mental harm claims
Mental harm claims are notoriously complex and frequently disputed. This may be due to conflicting information from the employer or co-workers, or the claim may be further complicated by a pre‑existing mental health condition or other non-work related psychosocial factors.
In order to establish a claim for mental harm under the South Australian workers’ compensation scheme:
1. The injury must be a diagnosable condition
A medically recognised psychiatric injury must be diagnosed by a qualified medical professional like your General Practitioner or a Psychiatrist. For example, you may be diagnosed with post‑traumatic stress disorder (PTSD), a major depressive disorder, or an adjustment disorder. While “stress” is often associated with a psychological injury or is a symptom of these conditions, it is not in itself a diagnosis.
If you wish to submit a claim, the medical practitioner will need to record your diagnosis and how this condition has impacted your capacity to work, on a document issued by ReturnToWork SA called a Work Capacity Certificate.
2. Work must be the significant contributing cause
Unlike claims for physical injuries, where employment needs to be a contributing cause of your psychiatric injury, these claims for mental harm set the bar higher. For a psychiatric injury to be compensable, your employment will need to be the significant contributing cause of the psychiatric injury. This means that if you have other stressors in your life at the time, the claim may become more challenging.
These are complex questions of law and are generally considered against by comparing any work‑related factors with any non‑work factors. In order to meet the threshold, the employment factors must collectively be the most significant cause of the psychiatric injury.
The “reasonable management action” exclusion
Section 7(4) of the RTW Act provides the employer with a kind of defence. This is also referred to as an exclusionary clause. This means that even if you felt you were bullied and you suffered a psychiatric injury, your claim may fail if the employer can establish that the conduct that caused your psychiatric injury was wholly or predominantly caused by reasonable management action carried out in a reasonable manner.
Essentially, the law acknowledges some decisions are a necessary part of doing business and may cause mental harm to a worker. These kinds of decisions are typically actions such as:
- Disciplinary actions or warnings
- Performance reviews and appraisals
- Decisions regarding promotions, transfers, demotion, retrenchment or dismissal
However, there are two threshold questions in this exclusionary clause. The second relates to the manner in which the management action was undertaken. The employer will need to ensure their conduct is lawful and taken in procedurally fair manner. You may wish to get advice from a workers’ compensation lawyer as to what constitutes reasonable in this regard.
Making a claim for psychological injury
Due to their complexity, claims for psychological injury can take longer to determine than those involving only physical injury. Claimants should:
1. Seek medical help
See your GP as soon as possible. You will need a Work Capacity Certificate to support your workers’ compensation claim. Ensure the doctor includes a specific diagnosis and clearly notes how your work has contributed to your symptoms.
2. Report the injury
Notify your employer about your diagnosis as soon as you can. Most workplaces have an internal incident reporting system.
3. Lodge the claim form
You can lodge a claim form directly with ReturnToWorkSA or your employer’s insurance agent. In many cases this will be a claims agent appointed by ReturnToWorkSA to manage claims on its behalf. You will need to provide:
- The completed claim form
- A Work Capacity Certificate
- A description of the events at work that led to the injury
Because these injury claims can take longer to assess, there may be circumstances where interim payments for income support and medical expenses are made while your claim is being determined. A word of caution; these payments are recoverable if your claim is ultimately rejected. This means that you will have to repay any monies paid to you while your claim was being determined.
4. Consider legal advice
Time limits apply for lodging a workers’ compensation claim, and mental harm claims are particularly complicated. Seeking early legal advice can help you to better understand your rights and meet deadlines. There are also time limits set down for disputing a rejected claim, and these can be strict, so prompt advice is recommended if your claim is reduced, rejected or discontinued.
Key takeaways
Injuries of mental harm are compensable if there is a formal diagnosis of a recognised psychiatric condition and if the worker’s employment was the significant contributing cause of that condition.
Common causes of mental harm at work include witnessing or being involved in traumatic events, bullying and harassment, and excessive workloads or unrealistic deadlines that lead to a breakdown in mental health.
Injuries are not compensable if they are wholly or predominantly caused by an employer’s reasonable management action taken in a reasonable manner. This often includes performance reviews or appraisals, disciplinary action, and decisions regarding promotion, transfer, demotion, retrenchment or dismissal. Injuries are compensable if the management action was undertaken in an unreasonable manner.
Different rules apply to certain entitlements for psychiatric injuries. Unlike physical injuries, only pure mental harm can be assessed for permanent impairment and lump sum compensation. Only those workers so seriously injured that they suffer a permanent impairment of the mind to the degree that 30% or more of the whole person is impaired, will be entitled to lump sum compensation. These workers are deemed seriously injured. This article does not delve deeply into this area of law and may warrant separate advice.
This is general information only and does not constitute legal advice. Workers’ compensation laws vary across Australian states and territories, and this article describes only the South Australian scheme. You should obtain professional advice relevant to your circumstances.
For help, call 08 8443 4888 or email [email protected].