The Test for Psychological Injuries in Workers Compensation Claims

Headshot of Libby Campbell - Solicitor at Everingham Solomons TamworthPsychological injuries as a result of work are significant workers compensation claims, however there is a potential defence for employers to prevent psychological claims.

The Workers Compensation Act 1987 states at section 11A, “No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

There are three main elements of the test. Firstly, that the injury was wholly and predominantly caused by work. Therefore, if there were other extenuating circumstances, which may have been the cause of the injury, then the injured worker is not successful with passing this test.

Secondly, whether the actions fall under a transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal.

Thirdly, what is considered reasonable action by the employer will depend on the facts of the case. For example in the case of Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 it was noted that when considering what is reasonable, the employer is not required to consider everything; they are only required to consider the facts that are known to the employer at the time or could be known with reasonable diligent inquiries.

In the case of Green v Secretary, Department of Regional NSW [2021] NSWPIC 37, Member Snell reviewed each element of the test and while she found the first two elements were satisfied, the third element of reasonableness was not. The employer failed to reassure the worker’s concerns in relation to a transfer and therefore the employer’s actions were not reasonable.

If you have suffered a psychological injury as a result of work and the insurer has denied the claim based on section 11A, or you are an employer with an employee that has suffered a psychological injury, please contact our office to speak with one of our IRO approved solicitors because Helping You is Our Business.

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Workers Compensation payments and COVID-19 lockdown – are they being calculated correctly?

Headshot of Libby Campbell - Solicitor at Everingham Solomons TamworthIf you are injured at work and require workers compensation, one of the entitlements available to you is weekly payments for the period you are incapacitated to work. Weekly payments are calculated based on your Pre-Injury Average Weekly Earnings (PIAWE) and are the average of your gross earnings from any employment performed for 52 weeks immediately before the date of injury. Therefore if you work in two jobs, immediately before your injury, earnings from both employers are included in your PIAWE.

Recently, as a result of COVID-19 and the subsequent lockdowns that have been required, the question is then raised if you were not receiving income for the total 52 week period immediately prior to your injury, will your average earnings still be calculated over a 52 week period?

The NSW government introduced the Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020 and specifically Schedule 1, Clause 8EA allows for an adjustment to occur in the earning period if there was a change to the injured worker’s employment arrangements as a direct result of the impact of the COVID-19 pandemic.  Specifically the change had to occur between the periods of 23 March 2020 to 27 September 2020, and therefore those affected weeks would not be included in the PIAWE calculation.

This was a welcomed amendment for injured workers, otherwise if you were required to have the PIAWE calculated over the 52 week period you would potentially receive a substantially less PIAWE rate and therefore your weekly payments would be paid at a lesser rate from the commencement of your claim.

If your PIAWE calculation covered the period between 23 March 2020 to 27 September 2020 and your earnings were materially affected due to COVID-19, please contact our office, because it may be the case that your PIAWE is incorrect and therefore your weekly payments are potentially less than what they should be. We have two IRO approved solicitors that can assist with reviewing your PIAWE so please get in contact with our office because Helping You is Our Business.

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Have your workers compensation treatment expenses been paid?

Under NSW Workers Compensation Law if you require treatment as a result of an injury the workers compensation insurer is required to pay for the treatment if it is considered reasonably necessary. However, there is a process to obtaining pre-approval and payment for expenses related to medical treatment as a result of your injury.

To commence with treatment you must seek pre-approval from the workers compensation insurer. Any request for reasonably necessary treatment should be approved by the insurer within 21 days of that request being made pursuant to Section 60 of the Workers Compensation Act 1987.

If the workers compensation insurer has exceeded this time frame we can intervene on your behalf to obtain a response from the insurer.

If after receiving treatment, the workers compensation insurer has not forwarded payment to your treating doctor or specialist, there are benchmark time periods that apply to the insurer. The workers compensation insurer has 10 working days after receiving a valid tax invoice from your treatment provider to pay the tax invoice. If the payment is not forthcoming, we can assist with making sure your treatment provider is paid promptly and treatment can continue.

If you or someone you know is having difficulty either having treatment approved by the workers compensation insurer or having medical expenses paid by the insurer then please contact our office because Helping You is Our Business.

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Worker with highest needs – when does the highest rate of weekly payments start?

Under Workers Compensation Legislation, if a worker is assessed at 31% Whole Person Impairment or greater they are considered a “worker with highest needs”. This classification provides them with an entitlement to receive weekly payments at the Pre Injury Average Weekly Earnings rate, in addition to any potential income they may be earning from employment, provided they still have some level of incapacity. Therefore a worker considered in this class, can potentially be receiving significantly more money per week post injury than what they were earning prior to the injury.

However, the question has been raised by the recent case of Meat Carter Pty Ltd v Melides [2020] NSWCA 307, when does the highest rate of weekly payments start.

In this case the worker was first injured on 14 August 2014. However he wasn’t determined to be a “worker with highest needs” until 9 June 2017, following a Medical Assessment Certificate that assessed him at 60% Whole Person Impairment. The worker was then paid at the special Section 38A rate from 9 June 2017 onwards. He made a claim to the insurer, from the date of injury of 14 August 2014 up to 8 June 2017, a period of just less than 3 years, seeking for the special Section 38A rate to be paid.

The matter went on appeal to the New South Wales Court of Appeal but it was held the worker had not satisfied the definition of “worker with highest needs” until 9 June 2017, and therefore weekly payments were only payable from that date onwards and not from the date of injury.

If you have a workers compensation claim and have any questions in relation to what you are entitled to please contact Everingham Solomons because, Helping You is Our Business.

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A gap in weekly payments of workers compensation

In 2012 the NSW Government made significant changes to the workers compensation system. For injured workers who made workers compensation claims prior to 2012 their weekly payments ceased on 25 December 2017, if they had not been assessed at greater than 20% whole person impaired. If injured workers later went on to be assessed at greater than 20% whole person impaired the workers compensation insurer was not reimbursing payments to the injured worker for the period they went without receiving weekly payments of compensation.
However, new case law decided on 17 June 2020 has now overturned any misconception that weekly payments were not payable for the period that the weekly payments stopped up until the assessment of greater than 20% whole person impairment. The two cases are Hochbaum v RSM Building Services Pty Ltd (Hochbaum); Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 (Whitton).
Previously it was thought that section 39(3) Workers Compensation Act 1987 provided that an assessment needed to be completed by an Approved Medical Specialist before the weekly payments would be payable and therefore the assessment did not act retrospectively. Following the decision in Hochbaum and Whitton the court has made it clear that subsection 3 only provides a mechanism for assessment and not a time frame. Additionally section 39(2) simply states the only threshold required for weekly payments to continue is for the worker to be assessed at greater than 20% whole person impairment and it does not matter when that assessment occurs.
If your weekly payments ceased on 25 December 2017 and there was a delay in receiving an assessment of greater than 20% whole person impairment, and your weekly payments were temporarily not paid, please contact our office because you may be entitled to reimbursement. We have two WIRO approved solicitors to assist you with your workers compensation claims because Helping You is Our Business.

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New employee? New information and the latest law on personal/carer’s leave

As every new employee commences work their employer must provide them with certain documentation and the documentation from the Fair Work Commission has recently been updated. The Fair Work Commission publishes the Fair Work Information Statement, which is available online. This document must be provided to every new employee in Australia before they commence work or as soon as possible after they commence work.

For employees this document provides information about Australia’s employment laws and what governs them. It provides the minimum entitlements to workers known as the National Employment Standards or NES, and also lists the minimum wage for adult permanent and casual employees.

On 19 August 2019, the Full Federal Court handed down a decision in relation to the method of accruing and taking paid personal leave under the NES. This case is known as the Mondelez decision and confirmed that full time and part time employees are entitled to the same amount of paid personal/carer’s leave for each year of employment, being 10 days per year. The case is currently on appeal to the High Court but at the present time the Mondelez decision is law and the Fair Work Information Statement reflects the current law.

The Information Statement also details the requirements for ending employment, what notice period is required and what should be included in your final pay. If the employee believes the termination was unfair they have 21 days to file a claim in the Fair Work Commission.

For Employers, it is important you record when and how the Fair Work Information Statement was provided to all employees. If you require any assistance with employment law matters please contact our office because Helping You is Our Business.

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Coronavirus – can you claim Workers Compensation?

Coronavirus is the hot topic on everyone’s mind but what happens if you contract Coronavirus as a result of your employment, can you claim workers compensation?

For every Workers Compensation Claim there needs to be an injury and contracting Coronavirus would certainly qualify as an injury. Coronavirus as we have been made aware, currently requires at least a two week quarantine following the end of symptoms to prevent the spread of the virus. Therefore there is an incapacity to work not only while you are sick with the virus but also two weeks following the end of the symptoms.

Some people may simply choose to take personal leave and will have that amount of accrued leave available, while some employers may also pay to have the worker remain in quarantine to prevent other workers being infected.

The question though is, can you claim Workers Compensation?

Under Workers Compensation law section 9A of the Workers Compensation Act 1987 comes in to play. No compensation will be payable in respect to a disease injury unless the employment concerned is the main contributing factor to the injury.
For healthcare workers treating Coronavirus patients this may be a very easy link to prove, provided there is no evidence indicating they were exposed to the virus outside of their employment.

For the rest of society, a case by case review will be necessary.

Other diseases in society such as chicken pox or influenza are not easy to claim workers compensation, simply due to the fact that it is difficult to prove your employment is the main contributing factor of contracting the disease when it is able to be contracted in society generally.

While fortunately at this stage the Coronavirus has not spread to Tamworth or our region, if you think you have a contracted a disease and the main contributing factor is your employment then please contact our office, because Helping You is Our Business.

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The Timeliness Of Surgery

One of the disputes workers compensation clients will encounter with insurance companies is whether treatment is reasonably necessary following a workplace injury. The relevant section of the Workers Compensation Act 1987 NSW is section 60. If the dispute is before an Arbitrator in the Workers Compensation Commission they will need to consider the following before deciding on whether treatment is reasonably necessary or not, as noted in Rose v Health Commission (NSW) (1986) 2 NSWCCR 32:

a) The appropriateness of the particular treatment;
b) The availability of alternative treatment, and its potential effectiveness;
c) The cost of the treatment;
d) The actual or potential effectiveness of the treatment; and
e) The acceptance by medical experts of the treatment as being appropriate and likely to be effective.

In the matter of Laing v Sydney Catholic Schools Limited [2020] NSWWCC 19 the timeliness of surgery was considered. The worker had injured her left knee at work on 23 March 2016 and had been advised that a total knee replacement would be required. However no surgeon had requested approval to perform the surgery from the insurer and no medical expert advised that the surgery was required now. It was anticipated surgery would be required at some point but there was no evidence to state that surgery was required right at this point. The Arbitrator could not rule in favour of the worker based on the evidence before her therefore the insurer was successful in disputing the claim.
If you have been injured and the insurer has denied your claim for surgery please contact our office for advice because Helping You is Our Business.

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Journey claims and Christmas parties

With the festive season in full swing and enthusiastic employees awaiting a party to unwind from their work responsibilities, employers should be aware that liability for workers compensation claims is still applicable. This is regardless of whether the annual Christmas party is held privately or publicly, at a location or premises different to their usual place of business.
In the case of Suzanne Elizabeth McCoy v State Super Financial Services Australia Limited [2018] NSWWCC 77 which was decided in 2018 the applicant worker was planning to attend her work Christmas party at a local hotel in the same town as her employment. She was tired from the day’s work and the year that had been. She lived approximately 40 minutes from the town and was intending to consume alcohol at the function so had booked a motel for the night with her husband, which would also avoid a long trip home after the party. She finished work at 5pm, her husband then picked her up from work and went to the motel. They then got ready for the party at the motel and then left the motel at 5:45pm to ensure they arrived on time for the party at 6pm. They were hurrying to get to the party. It was the worker’s perception that she was required to attend the party on time. While making their way to the party the worker tripped on a raised paver and injured her right ankle. The right ankle injury led to significant complications including symptoms suggestive of Complex Regional Pain Syndrome.
Liability was disputed by the workers compensation insurer. The insurer did not dispute the injury occurred but they did dispute whether the injury arose in the course of her employment, whether the injury arose out of that employment, whether the applicant’s employment was a substantial contributing factor, whether the applicant was making a journey, and whether there was a real and substantial connection between her employment and the injury.
The Arbitrator found for the worker in respect to her making a journey claim and that there was a real and substantial connection between the worker’s employment and the fall causing injury, namely she was tired from the day and year, as well as her perception to attend the work party on time which lead to her hurrying.
If you have a query whether a journey claim is a compensable workers compensation claim please contact Everingham Solomons because Helping You is Our Business.

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Section 38A of the Workers Compensation Act 1987 – a bonus for workers with Highest Needs

Under the NSW Workers Compensation system a worker is assessed, once they have reached maximum medical improvement, based on a percentage of whole person impairment. This percentage then equates to varying levels of compensation. If a worker is assessed at greater than 30% whole person impairment the worker is then considered a worker with Highest Needs.

Section 38A of the Workers Compensation Act 1987 then comes into play as it provides a special provision for workers with Highest Needs. Provided the worker has some level of incapacity, the worker has access to a minimum weekly payment of compensation. Under section 38A the amount is $788.32 indexed, and is currently $840 per week.

Previously, if a worker with Highest Needs had some capacity to work, was earning income less than the minimum weekly payment, and their pre injury average weekly earnings was less than the minimum weekly payment, it was presumed that the workers compensation insurer would top up the worker’s wage until it reached the figure stipulated under s38A. However, the case of Vostek Industries Pty Ltd v White [2018] NSWWCCPD 47 has found differently. Mr White who was the injured worker was assessed at 32% whole person impairment. He returned to work and was earning $984.50. He then made a claim for the amount under s38A, in addition to his earnings from employment.

Mr White was successful in his claim and it is now confirmed, as a result of this case, that the injured worker is entitled to earnings plus the amount under s38A provided they are a worker with Highest Needs, and have some level of incapacity. If you think you are or know someone who fits this criteria and has not been receiving the additional amount under s38A please contact our office because Helping You is Our Business.

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