Psychological claims

Psychological injuries or mental health claims now account for 16% of all new Workcover claims.

In principle there is no difference between suffering a physical injury at work or a psychological injury at work. In practice however, psychological injury claims are treated differently to physical injuries.

If you have suffered a psychological injury in the workplace and you need advice, call and speak to one of our expert Workcover lawyers.

When to see a lawyer

The first thing you need to do is notify your employer as soon as possible after you are aware you have suffered a psychological injury at work. It is best to do this within 30 days. You will need to lodge your Workcover Claim form together with a certificate of capacity from your doctor.

You can access early treatment and support while awaiting the outcome of your claim. Provisional payments can cover the reasonable cost of treatment for 13 weeks.

If your claim is rejected

If your claim for psychological injury is rejected you can still take action. Claims for psychological injury in the workplace are often rejected due to the employer relying on “reasonable management action”.

The way in which a management action was undertaken by your employer is very important. The facts of every case is context specific, however, the actions of your employer may be viewed as unreasonable if you can demonstrate they were discriminatory, unfair or excessive.

At your first meeting with our lawyer we will ask for as much detail as possible about:

1. Dates and times of each event
2. Description of each event
3. Who was involved
4. What knowledge they had at the time
5. What steps you had taken to report events to your employer
6. What reports you had made to your employer about your mental state

If you have suffered a psychological injury such as burn out or stress due to an increase in workload, missing out on a promotion or being stood down, you may not necessarily have a compensable claim.

Our experienced lawyers can offer you expert legal advice specific to your situation if your psychological claim has been rejected.

If your claim is accepted

Our experienced lawyers can offer you legal advice about pursuing lump sum compensation. Claims for lump sum compensation cannot be commenced until after 12 months has passed since you suffered the injury or when your psychological injury is stable.

It is important to keep all records of events including as much detail as possible of dates and descriptions of what occurred.

When you are ready, we can provide legal advice in relation to commencing lump sum compensation for your psychological injury.

If your claim is terminated

If you have an accepted claim for psychological injury in the workplace that has been terminated by the workcover agent, you can still take action.

The first step is to appeal the decision to the Workplace Injury Commission. An application to the Workplace Injury Commission needs to be made within 60 days of the decision.

Our experienced lawyers can provide legal advice if your claim for psychological injury has been wrongly terminated.

Defining bully and harassment in the workplace

Bullying is repeated and unreasonable behavior directed towards you in the workplace that creates a risk to your health and safety.

Harassment is when you are treated less favorably in the workplace on the basis of certain personal characteristics and involves a pattern of behavior designed to intimidate and distress you.

If you suffered a psychological injury as a result of bullying and harassment in the workplace your claim is compensable.

The type of abuse suffered in the workplaces may be verbal, physical or emotional. We will ask you to provide as much detail as possible to describe the behavior in the workplace that resulted in your psychological injury including:

1. The language that was used such as abusive, derogatory, racist, offensive or humiliating
2. The actions of individuals that were intimidating or distressing such as stalking, yelling, deliberate ignoring, or body language that was threatening or aggressive
3. Whether there was actual or implied physical harm such as, an item being thrown at or near you, being pushed, pulled or spat at.

Contact us

We know that suffering an injury at work can have a catastrophic effect on your health, emotional well-being, quality of life and financial security. We also know that dealing with large government agencies can be challenging, which is not what you need when you should be focusing on your recovery.

With Arnold Thomas & Becker WorkCover lawyers on your side, you can be sure you will get the maximum compensation you are entitled to. Let us eliminate the stress and frustration while you get better. To speak to a lawyer today, call us on 1300 333 300 or send us a message using the form below.

Frequently asked questions

Why did my psychological injury claim get denied by workcover?

It is common for Workcover to deny workers compensation claims for psychological conditions like stress, anxiety and depression. For example, if you have suffered a psychological injury such as burn out or stress due to an increase in workload, missing out on a promotion or being stood down, you may not necessarily have an accepted Workcover claim. In fact, due to a recent change in the law, after 31st March 2024, claims for psychological injury caused by stress or burnout arising from your usual work activities are no longer compensable, other than for provisional payments of medical expenses for a period of 13 weeks. Usual work activities include the typical demands of your job, workload pressure and interpersonal interactions.

In addition, an insurer will rely on the actions of the employer being “reasonable management actions” to deny the claim. What is considered “reasonable” can vary depending on the unique circumstances of each case. However, the actions may be viewed as unreasonable if you can demonstrate they were discriminatory, unfair or excessive.

Our lawyers are able to advise you on the merits of challenging a rejected claim for psychological injury. This usually involves issuing proceedings in the Magistrates Court. We often obtain settlements for our clients who have had their psychological injury claim rejected by Workcover.

What if I had a pre-existing psychological condition (even if it was many years ago)?

If you have a pre-existing condition or unrelated psychological conditions, to receive workers compensation, your work must be found to be the “predominate cause”. That is, you must show that your employment was the strongest or largest contributing factor. This also applies where you may have suffered a reoccurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.

It is usual for the insurance company to try to scrutinize your life and look to blame other events that may have caused stress or emotions such as:

  1. Grief
  2. Divorce or family troubles
  3. Financial troubles
  4. History of mental illness (even if decades ago)
  5. Past or current drug use
  6. Criminal history
  7. Other health issues

However, regardless of your past history or other life events, if the cause of your ongoing psychological problem is predominately work related events, you may still have grounds for a workers compensation claim.

What if my psychological injury is caused by my physical injury?

If you have suffered a physical work related injury and then go on to develop a psychological injury, for example depression, you can apply to workcover to fund medical treatment.

You won’t be able to receive any impairment benefit for psychiatric injury even if they are compensable as a consequence of a physical injury unless the psychological injury is a primary injury (more on that below).

Any psychological injury caused as a result of your physical injury can be included in an assessment of damages.

What if my psychological injury is caused by traumatic events?

If your psychological injury is caused by traumatic events, even if those traumatic events are usual or typically expected to occur in your line of work (for example a paramedic or police officer) then you may have an entitlement to compensation. Traumatic events may involve exposure to or actual physical, abuse or the threat of or actual physical harm. If you are a front line worker and have suffered a psychological injury we recommend that you contact our lawyers before lodging a Workcover claim.

Can I just sue my employer and get a pay out?

Possibly. There are conditions imposed by Victorian workers compensation laws so that before you can recover any money for pain and suffering or for past and future economic loss as a lump sum, you must prove that your injuries are “serious”. Our lawyers can provide advice as to whether your psychological injury is likely to meet this test. This assessment can only be made when your injury has stabilized and it is a good idea to discuss this with your doctor, psychologist or psychiatrist before meeting with our lawyers.
You also must prove that your employer was negligent. There is no simple “one size fits all” answer to the question of negligence. Our lawyers are experts in assessing whether you have grounds to pursue a lump sum claim against your employer in negligence.
Every case is context specific such as:

  1. The type of work you do
  2. The type of bullying and harassment or traumatic event
  3. Whether there are witnesses in support
  4. What knowledge your employer had about your injury or ability to perform your work
  5. Whether the conduct of your employer was reasonable
  6. What system or supervision the employer had in place

We will look to pursue a common law claim against your employer where you have suffered psychological injury arising from your workplace in circumstances where there is harassment, bullying and / or a traumatic event.

I can no longer work at my employer, how do I get a payout?

Even with the best efforts and the best intentions, returning to work, especially with the same employer responsible for your psychological injury can be tough, and sometimes impossible.

Our clients have described having panic attacks, sweaty palms, breathlessness, nightmares, insomnia and traumatic flashbacks at even the thought of going back to the workplace. So what next?
Under the Victorian workers compensation law, weekly payments can be paid for up to 130 weeks provided you have an ongoing incapacity for employment. After 130 weeks the test changes so that in order for weekly payments to continue you will need to show that you have no current work capacity, which is likely to continue indefinitely. This includes an incapacity for any employment, not just the employment you had with your employer at the time you were injured. Due to a recent change in the law, after 31st March 2024 you will also need to show that you have suffered a permanent impairment in excess of 20%. This is a very high threshold and means that it is difficult test to meet. For more information visit our impairment benefits web page.

Other than long term weekly payments, which are subject to the above tests, the only other options under Workcover are for a no fault impairment benefit or a claim in negligence.

I have been diagnosed with a psychological injury, what amount of lump sum can I get?

Impairment
This is a no fault benefit and can be pursued as a lump sum claim if you have a work related psychological injury that has left you with a permanent impairment.

To be eligible to receive an impairment benefit for psychiatric injury you must show that you have suffered a 30% whole person impairment.

So what is a 30% whole person impairment? An independent psychiatrist will assess you with reference to the table for the evaluation of psychiatric impairment. To be in the range of 25% to 50% whole person impairment you will need to be assessed as having at least a moderate to severe impairment to your mental functions across various areas such as intelligence, thinking, perception, judgement, mood and behavior.

In assessing the degree of impairment there is no allowance for any psychological injury arising as a consequence of or secondary to a physical injury.
The amount of compensation for psychiatric impairment where you have a 30% whole person impairment is $96,780.00. This amount increases for every whole person impairment in excess of 30%.

Negligence
This area of law is complex and emerging, and our firm is proud to be pushing the status quo having gained a reputation and track record for obtaining results in negligence claims against employers for psychologically injured workers. The maximum amount for pain and suffering damages in Victoria is $661,100.

What are my time limits?

Sometimes it can take a long time to identify that you have suffered a psychological injury. It is not unheard of for clients to come to us many years after the actual events.

You have six years to bring a claim in negligence against your employer. However, even if you are outside of this time you may still be able to make an application for an extension of time. However you need to seek advice quickly.

I have received a notice that I “have no reasonable prospects that I will meet a 20% impairment” – will my weekly payments stop?

Under the Victorian workers compensation law, weekly payments can be paid for up to 130 weeks provided you have an ongoing incapacity for employment. After 130 weeks the test changes so that in order for weekly payments to continue you will need to show that you have no current work capacity, which is likely to continue indefinitely. This includes an incapacity for any employment, not just the employment you had with your employer at the time you were injured.

Due to a recent change in the law, after 31st March 2024 you will also need to show that you have suffered a permanent impairment in excess of 20%. This is a very high threshold and means that it is difficult test to meet. For more information go to our impairment benefits web page. You may however be entitled to bring a lump sum claim.