A helping hand thanks to Delaney v Q-COMP, the 2019 legislative amendments, and Your Claim Lawyers
Many applicants that have sustained a psychological injury from bullying and harassment in the workplace (in particular) will find their applications denied by WorkCover or a self-insurer in the first instance. Why is this?
The high rejection rate is in large part due to the operation of section 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’). This subsection only applies to psychiatric or psychological injuries. It operates to exclude injuries psychiatric or psychological injuries arising from ‘reasonable management action’ from the definition of an ‘injury’ under s 32 of the Act.
There is some new hope for applicants. A 2019 amendment to the legislation, in combination with the precedent established by Delaney v Q-COMP and subsequent cases,[2] give applicants a better chance of a successful application for compensation.
In October 2019 the Act was amended. Previously, employment had to be a ‘major significant contributing factor’ to the psychiatric or psychological injury for the purposes of the Act. The recent amendment changed this, so now employment need only be a ‘significant contributing factor’ to the applicant’s psychological or psychiatric injury. This broader definition via removal of ‘major’, should in theory reduce the threshold for applicants.[3]
The case of Delaney and those that have followed are also important. In Delaney, President Hall determined that where one of a number of events and courses of conduct would merely be considered a ‘blemish’ in management action if considered in isolation, and where the events and courses of conduct are not truly discreet (i.e. joined by subject matter, time and personality), then a worker will be entitled to a much more ‘global evaluation of the actions in which the management team had engaged’.[4]
This global evaluation will be appropriate where the incidents complained of are joined by subject matter, time and personality, are in a discordant workplace and are in respect of a worker with an existing psychological makeup to consider.[5]
This global approach is supported in Brenda Whyte v Q-Comp,[6] Craig John Hohn v Q-Comp,[7] Verhagen v Q-Comp,[8]and Q-Comp v Glen Rowe.[9]These cases have rejected McArthur’s case,[10] and based on these cases, as well as Lane,[11] where a psychiatric or psychological injury occurs over of period of time, a global assessment shoulder be undertaken to determine whether s 32(5) of the Act will apply to exclude the claim.[12]
A global approach where various management ‘blemishes’ are considered to assess the reasonableness of management action can be of benefit to an applicant, as will be discussed further below.
The legislation
11 Who is a worker
(1) A worker is a person who—
(a) works under a contract; and
(b) in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5.
(2) Also, schedule 2, part 1 sets out who is a worker in particular circumstances.
(3) However, schedule 2, part 2 sets out who is not a worker in particular circumstances.
(4) Only an individual can be a worker for this Act.
32 Meaning of injury
(1) An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
(5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances –
(a) Reasonable management action taken in a reasonable way by the employer in connection with the workers’ employment;
(b) The worker’s expectation or perception of reasonable management action being taken against the worker;
(c) Action by the Authority or an insurer in connection with the worker’s application for compensation
Examples of actions that may be reasonable management actions taken in a reasonable way –
- action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
- a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment
108 Compensation Entitlement
(1) Compensation is payable under this Act for an injury sustained by a worker.
You must therefore establish that:
- You were a ‘worker’ within the meaning of s 11 of the Act; and
- You sustained an ‘injury’ within the meaning of s 32 of the Act.
For a psychological application, to prove an ‘injury’ under s 32 you must show:
- You sustained a personal injury
- The personal injury arose out of or in the course of your employment
- The employment was a significant contributing factor to the injury.
You should also have turned your mind to proving that:
- The injury did not arise out of or in the course of:
(a) Reasonable management action taken in a reasonable way by the employer in connection with your employment
(b) Your expectation or perception of reasonable management action being taken against the Applicant
(c) Action taken by the Insurer in connection with your application for compensation.
Onus of proof
Section 132(3)(b) of the Act, through the operation of regulation 102 of the Workers’ Compensation and Rehabilitation Regulation 2014 (‘the Regulation’), requires that you provide the insurer with evidence or particulars of the injury and its cause, and the nature, extent and duration of incapacity resulting from the injury.
- The date and time of when the events took place;
- Who was involved;
- What happened and who said what;
- Name and contact details of witnesses.[13]
As much as possible, you should have objective evidence of the events/stressors resulting in the injury. In a claim for bullying or harassment this could include contemporaneous diary notes, independent witness statements, direct emails between involved persons, or evidence of prior complaints. A summary that you write retrospectively of what has happened will not be as strong as objective, contemporaneous evidence.
Personal injury
You must prove that you have sustained a personal injury. This is usually done by way of Workers’ Compensation Medical Certificate, in combination with other relevant medical records or reports.
It would be beneficial for you to get their doctor to address, prior to making an application:
- How long you have been a patient with them.
- What the current diagnosis is.
- Whether, in their medical opinion, your employment is/was a significant contributing factor to the diagnosis.
- What events/stressors contributed to your injury.
- What treatment you have been referred to and/or are undertaking.
- The date of ‘assessment’ of your injury.
Date of assessment
Under section 131(1) of the Act, an application for compensation is valid and enforceable only if lodged within six (6) months after the entitlement to compensation arises.
Under section 141 of the Act, the entitlement to compensation arises when the worker is assessed by a doctor.
Per the Industrial Court in Toward, ‘[i]n order for a doctor to ‘assess’ an injury as an ‘injury’ within the meaning of the Act there must be evidence of some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment’.[14]
For an assessment to have occurred, per Toward, the doctor must ‘direct their minds to the question of which physical injury, if any, arose out of employment’.[15]
The date of assessment may therefore be a different date from when the symptoms began, or even a different date from the first time the Applicant saw their doctor about the symptoms. The assessment only takes place when the doctor directs their mind to the injury arising out of the employment, and this is commonly the day when a workers’ compensation medical certificate is first issued.
The Applicant’s doctor needs to be very clear about the date of assessment, as having the wrong date can mean that the Applicant does not lodge the application for compensation in time, and it will be rejected.
Did the personal injury arise out of or in the course of the Applicant’s employment and was the employment a significant contributing factor to the injury?
‘An employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee’s physical wellbeing’.[16]
In Lackey v WorkCover Queensland,[17] the Industrial Court held that the phrase arising out of involves a causal or consequential relationship between the employment and injury, but does not require a direct or proximate relationship.
The required causal nexus to satisfy ‘arising out of’ is a relatively undemanding one. There is no specific need for a direct causative relationship between the workers’ employment and their injury; it only requires a minimally causal or consequential relationship between employment and the claimed injury.[18]
Furthermore, in order to satisfy the requirements under section 32 of the Act, employment related factors do no need to be ‘the’ significant causal factor for the injury. That employment was ‘a’ significant causal factor among a number of other causes (whether they were work related or not or significant or not), will be sufficient to satisfy section 32(1).[19]
To provide that the injury arose out of or in the course of your employment, and that employment was significant contributing factor to the injury, the Applicant should:
- Have their doctor address some questions (see above); and
- Identify for the Insurer the employment actions or stressors that have resulted in the injury. These event/stressors should be brief, clear, and substantiated by the evidence.
For example, events/stressors could be articulated as:
- My employer scheduled meetings without providing the option of having a support person available.
- My employer scheduled meetings to discuss my performance issues with a person present whom I had lodged a complaint against for bullying and harassing behaviour.
- My employer persistently and unjustifiably criticised me.
- My employer sent threating and intimidating emails.
- My employer swore at me and used threatening language in the workplace.
- My employer failed to take timely and determinative action on my complaints in contravention of company policy.
We can help with your WorkCover psychological/psychiatric claim
Did the injury arise out of or in the course of management action?
It is on this hurdle or exclusion that most applicants will fall when applying for WorkCover for a psychiatric or psychological injury.
In Avis v WorkCover Queensland,[20] the Industrial Court held that the phrase ‘arising out of’ involves a causal or consequential relationship between the management action and the injury, but does not require a direct or proximate relationship.
Was it management action?
From the outset, it should be remembered per Rutldge and Comcare,[21] that it does not follow that any interaction between a supervisor or manager and a subordinate employee that occurs in the context of employment will meet this test to the extent that it may be considered to be an ‘administrative action’ (or management action for the purposes of the Queensland legislation).
In cases where it was management action, you should be prepared to show that it was management action was not reasonable / not taken in a reasonable way.
Examples of unreasonable management action could include:
1. Failing to give prior warning of issues to be raised with the employee.
2. Failing to consult the employee on issues to be raised.
3. Failing to advise of the right to bring a support person or failing to provide a support person.
4. In a situation of alleged bullying/harassment, having the alleged perpetrator of the behaviour attend meetings with the alleged victim.
5. Engaging in persistent and unjustified criticism of the employee.
6. Sending threatening and intimidating correspondence.
7. Threating punishment and/or discipline that is unreasonable in the circumstances.
Applying Delaney
The decision in Delaney is notable in that it was held that where one of a number of events and courses of conduct would merely be considered a ‘blemish’ in management action if considered in isolation, and where the events and courses of conduct are not truly discreet (i.e. joined by subject matter, time and personality), then a worker will be entitled to a much more ‘global evaluation of the actions in which the management team had engaged’.
Once a number of events which may otherwise individually be considered as blemishes are repetitive, there is a stronger indication of a need for a global assessment. As such, as the actions are not ‘truly discrete’, it could be submitted that a global approach should be used to assess the reasonableness of management’s conduct in the subject case.
These ‘blemishes’ may be compounded where the Employer was fixed with knowledge of the Applicant’s psychological makeup and failed to account for same (see below).
Also remember that ‘a claimant may succeed though some of the operative events or stressors arise out of or occur in the course of reasonable management action taken in a reasonable way’.[22] So even if some events or stressors are reasonable management action, it does not follow that the claim will necessarily be rejected.
If you have a psychological or psychiatric injury, make sure you highlight for the insurer the various ‘blemishes’ of management, being the events/stressors. Where these have occurred over a period of time and are joined by subject matter, time and personality, the insurer should consider the management action through a global evaluation as in Delaney. This can help an applicant get over the line in establishing the unreasonableness of management action.
Is the knowledge of the employer of the employee’s psychological state relevant?
In determining whether the management action was reasonable or whether the management action was taken in a reasonable way, regard must be had to a particular worker’s susceptibility to a psychiatric or psychological disorder which is known to management.
A particular susceptibility of a plaintiff to psychiatric illness is a factor to be taken into account in determining whether the risk of injury was reasonably foreseeable.[23]
In Workcover Queensland v Kehl,[24] President Hall stated:
There seems to be no reason for concluding that the circumstances of the case do not include circumstances relating to the psychological makeup of the worker where those circumstances are known to the employer. It is not a matter of suggesting that management should speculate about the psychology of each of its workers if they are engaging in management action which may impact upon particular workers, or should require psychological evaluation of its workers. It is simply a matter of recognising that fixed with knowledge of a worker’s makeup a reasonable person would take that knowledge into account in assessing what is a reasonable way in which to implement an otherwise reasonable decision. (Emphasis added).
More specifically, it is noted in Koehler that
The duty which an employee is owed is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable…that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned. (Emphasis added).[25]
It flows that the employer could reasonably have been expected to foresee that these actions carried a risk of harm to the Applicant.
If your employer had knowledge of your psychological or psychiatric state prior to or during the events/stressors, this is evidence you should put before the insurer.
Top tips
- Make sure you are a ‘worker’ under the legislation.
- Have your proof ready, and make sure this includes objective evidence of the events/stressors.
- See your doctor (and get workers’ compensation medical certificate!).
- Make sure your injury is linked to your employment.
- Think about whether the events/stressors might be ‘management action’.
- What ‘blemishes’ have been demonstrated by management (your events/stressors).
- Did the employer know about your psychological state?
- Submit your application in time and consider any relevant limitation periods.
- Seek legal advice from an expert at Your Claim Lawyers.
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to CONTACT YOUR CLAIM LAWYERS.
[1] https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0010/186688/wcr-stat-report-2018-19.pdf
[2] [2005] 178 QGIG 197 (‘Delaney’).
[3] Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2019.
[4] Delaney, 4.
[5] Ibid.
[6] [2009] QIR Comm. 58.
[7] (Unreported, Queensland Industrial Court, President Hall, 26 March 2008).
[8] [2008] QIC 77.
[9] [2009] QIC 17.
[10] Q-Comp v Education Queensland [2005] QIC 46 (‘McArthur’s Case’).
[11] Steven Lane and Q-Comp (Unreported, Queensland Industrial Court, President Hall, 11 December 2009) (‘Lane’).
[12] See Psychiatric Injury in the Workplace – Factors to consider when taking on a client, Laura Neil 28 May 2010.
[13] https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0010/18649/Psychological-or-psychiatric-injury-claim-FS803.pdf
[14] Blackwood v Toward [2015] ICQ 008, [44] (‘Toward’).
[15] Ibid.
[16] Hegarty v Queensland Ambulance Service [2007] QCA 366 (‘Hegarty’).
[17] [2000] QIC 43.
[18] WorkCover v Curragh Queensland Mining Pty Ltd no.C89 of 2002, 16/12/02; Avis v WorkCover (2000) 165 QGIG 788 and Lackey v WorkCover (2000) 165 QGIG 2.
[19] Croning v Workers’ Compensation Board of Queensland (1997) 156 QGIG; Boyd v Q-COMP (2005) 180 QGIG 1129.
[20] [2000] QIC 67.
[21] [2011] AATA 865 (7 December 2011) (‘Rutledge’).
[22] Craig John Hohn v Q-Comp (Unreported, Queensland Industrial Court, President Hall, 26 March 2008).
[23] [2002] HCA 35.
[24] [2002] QIC 23 (17 May 2002).
[25] Koehler v Cerebos (Australia) Limited [2005] HCA 15 (‘Koehler’).