Demystifying workers compensation and the claim journey: What psychological injury?
???? ???????????? ???? ??.??.???????? – ?????? ?????????? ???????????????? ???????? ???????????????????? ?????? ???????????? ???? ?????? ???? ??????????.
For those contemplating lodging, or who currently have, a psychological injury claim in one of the various Workers Compensation (WC) Schemes throughout Australia, the journey to recovery can be paved with unexpected events, self-doubts and an overwhelmingly large suite of decision making. But remember: The claim is a process, it does not define you and as <Desiderata> said,
“Beyond a wholesome discipline, be gentle with yourself. You are a child of the universe no less than the trees and the stars; you have a right to be here.”
I wrote this article to help demystify some of the intricacies that workers with psychological injuries may face before and during the preliminary stages of the WC process. Having worked in the field for as short as three years, I am no thought leader; however, the topics of mental health and wellbeing have been the core of my lifelong learning. The thoughts in this article are derived from verbal recounts, research and my own observation. ???
Know the scheme ?
The WC Scheme is governed by separate legislation in each state and territory, and as a consequence each state and territory has its own unique rules and regulator. Most employers are legally obliged to provide WC insurance for their workers. In NSW, all workers are covered for work-related injuries and diseases under state legislation, even if their employer is uninsured.
The original policy intention of any WC Scheme is to protect both injured workers and their employers in the event of a workplace-related injury or disease. On the objective of protecting injured workers, this takes the form of an insurance payment if workers are injured or become unwell as a result of their work. On the objective of protecting employers, the WC Scheme inserts a professional third party aka the insurer to administer the claim and manage the financial and legal obligations in the Return-to-Work rehabilitation process.
For employers in particular, this can alleviate significant time and effort and may also prevent or at least reduce employment disputes that are relevant to the injury.
For both parties (injured workers and employers), once claims are initiated under the Scheme, communications with the WC insurer start. In order to communicate well, both parties need to first understand the role of an insurer. A WC insurer assesses liability of the workers’ claims and indemnify employers against compensation for accepted claims. To ensure an effective communication, all parties also need to be familiar with their rights and obligations throughout the WC process.
What is the WC process?
The WC process looks different for each party. For injured workers, there are 5 major phases:
For employers, depending on the nature of the business and if you are exempt employers, the above phases may not be applicable. According to SIRA NSW Workers compensation guide for employers (2023), generally there are 4 key steps:
Challenges in entering the scheme
For effective communication to take place, the receiver needs to comprehend the information or idea that the sender intends to convey. However, in reality, the levels of comprehension vary significantly between injured workers and their employers.
The touch points of dealing with WC insurers for employers usually start as early as setting up the business and purchasing the WC insurance. Conversely, for most workers, the touch points of dealing with WC insurers only start after they get injured.
During the injury phase, workers are vulnerable and juggling dealing with the acute injury symptoms, accessing medical resources and getting the appropriate treatment and plans to recovery. Administrative tasks including filling out forms, calculating pre-injury average weekly earnings (PIAWE) can appear excessive and difficult to manage. Unfortunately, some of these initial interactions, as part of injured worker’s obligation in WC process, have an ASAP time stamp – for example, reporting your injury and submitting Certificate of Capacity (CoC).
Regardless of one’s mental and physical state, the WC process and the associated obligations can be a foreign domain to people that have never encountered. Learning and absorbing new knowledge takes time. In the absence of expert support and trusted resources, any attempts to quickly grasp or to rush into completing the required course of actions can cloud one’s judgement and even trigger cognitive overload. This is an extra burden among some of the already-psychologically-injured workers. In other words, post injury, learning about the WC Scheme and how it works for the first time is difficult, daunting, and time-consuming.
Fortunately, a solution regarding this matter can be formulated at a preventative stage before the injury even occurs. Employers can build staff WC Scheme knowledge through induction modules and as well as annual refresher trainings. The modules could include topics such as:
This brings far forward the workers’ touchpoints on WC process and helps people to get familiar on each party’s (employer, worker, medical professional, the insurer and service provider) roles, rights and obligations.
In John Sweller’s ‘Cognitive Load Theory’ (Sweller et al., 2019), it is highlighted how pre-training before introducing a more complex topic can help people to understand and learn more difficult information. In the events when work injuries do occur, not only the injured ones can activate prior scheme knowledge, and have some confidence in dealing with the insurer, so are their managers and colleagues, to be more competent in return-to-work assist. Together, this may form a better support network within the team, minimise further work injuries and help smoothing one’s return-to-work journey. ??????????????
Find your support
It needs to be pointed out that in all Australian jurisdictions, the WC Scheme functions at a ‘no fault’ basis, meaning a worker’s entitlement to compensation is not a question of who was responsible for the injury, but is solely determined by whether the injury is work-related (Safework Australia, 2011). In other words, the injury must be directly linked to the conditions of your work or actions of your employer in the course of your employment.
The work-relatedness relies on the injury report form submitted by the worker and medical evidence submitted by treating professionals. This means that the worker, when physically possible to do, needs to capture and articulate, to their best ability, on the injury circumstances, present clear ‘facts’ and stats to both the employer and insurer. The STAR (Situation – specific details on event background, Task – your involvement, Action – the steps you took to address it, Results – what happened post events) story telling technique used in a job interview could work. In order to prove your injury is work-related, you will need to provide ‘evidence’ that might include medical records, statements from witnesses and other documentation that supports your claim.
Presenting evidence will strengthen your case. However, the collecting task is difficult especially when time is pressing, and you are enduring the injuries. ‘Adapt, Persevere and Overcome’ is a phrase heavily used by the United States Marines and it is a fitting motto for those who are dealing with physical and mental hardship. I think it could also be applied as a coping technique in the WC recovery journey:
The initial claim lodgement process is challenging, because it is unfamiliar, but crucial to getting your entitlements. As such, it is recommended that claimants seek legal advice from a qualified workers compensation lawyer and employment lawyer.
In NSW, a workers compensation lawyer, in theory, gets funding from the Independent Review Office (IRO), an independent statutory office established under the Personal Injury Commission Act 2020. Injured workers (excluding exempt workers), when engaging a workers compensation lawyer, should not be asked to pay upfront legal costs.
However, the scope of a WC lawyer’s work is limited to the dealing with your WC insurer. This includes investigating a potential or existing claim as well as challenging a dispute about a claim.
Employment lawyers, on the other hand, handle all worker and employer matters ranging from salaries, work treatment through to work health and safety conditions. Legal costs are charged at claimants’ own expenses.
With psychological WC injury claims, often there are circumstances, where the two legal domains overlap. For example, when the perceived suboptimal work condition is the root cause of an injury and return to the same condition can have adverse consequences on the person’s health and wellbeing. Taking both sides’ (WC lawyer and employment lawyer) legal advice into consideration can safeguard your rights, provide a holistic view on the matter, and unpack plausible options for the remaining period of your employment.
领英推荐
When the above situation happens, I often ponder on the necessity of a strict delineation between WC lawyer and employment lawyer. Although the delineation arises from the distinct parties involved in each type of matter:
It seems to me there are far more benefits if both lawyers collaborate and the lessons learnt from their joint insights can be taken by lawmakers in enforcing a psychologically healthier workplace.
This raises another possibility – if IRO could expand the compensable legal funding scope into the domain of employment law. One benign intention of course is to reduce legal costs for the WC claimant (especially with a psychological injury), but a strategic one is to gather qualitative insights and form a systematic view on how employers act and the common traits behind these compensable psychological injuries.
Many existing data reports heavily cover the recovery rate, return to work rate and the sum cost of psychological injuries, few really dive into employers’ behaviour patterns. This is not to make employers blameworthy in the Scheme, but to reflect on what is currently happening, what works, what doesn’t, bringing some legislations up to speed and in synced with reality.
What’s left unsaid
According to Safework Australia (2023), work-related psychological injuries are a major concern for Australian workplaces. These injuries are more complex than most physical injuries and have longer periods of time-off work and higher medical, legal and other claim payments.
For workers, stress and fatigue at one or two work instances may not develop into injuries, but if they become frequent, prolonged and untreated, the accumulation of these symptoms can harm health.
The common factors contributing to psychological injuries in the workplace include but are not limited to bullying and harassment, poorly managed work environments and excessive workloads resulting in burnout and associated physical symptoms.
The common barrier that blocks workers from reporting psychological hazards and utilising WC insurance is the social stigma involved in seeking for help and claiming compensation while still at work.
Mental health stigmas at workplace include negative perceptions of workers who face difficulties with mental health (Healthdirect, 2021). Workers often fear reprisals from their workplace or the possibility of getting fired for filling a compensation claim or revealing psychological injury. Although WC legislation in each state and territory expressly prohibits this, protections vary throughout Australia and the perception nevertheless remains.
The source of negative stigma can come across at a team level, from management or peer colleagues due to a lack of understanding. Workers are fearful being labelled as a ‘troublemaker’. At an individual level, a common roadblock that stops people from getting help is feeling embarrassed and ashamed. This may later develop into self-criticism for not coping, and put up barriers to ultilising WC insurance and getting better health outcomes.
Mental health stigmas also increase organisational disruptions and costs to employers.
First, the absence of reporting first hinders employer’s ability to identify and respond to psychological hazards at the workplace. In other words, the employer cannot fix what they do not know is broken.
Second, stigma in the workplace can lead to discriminatory behaviour, including harassment (Comcare, 2021). If the risk behaviour is not challenged, this may affect more personnel and turn into a collective legal dispute in the public domain, leaving the employer with a potentially huge financial penalty and reputational loss.
Third, prolonged workplace psychological injuries can filter into other domains of life and develop into social problems. In Australia, the Productivity Commission (2020) estimates mental illness and suicide costs the economy between $200-220 billion a year.
Conclusion
The Workers Compensation Scheme is a complex interplay between individuals, insurers, employers, treating medical practitioners, service providers and the community. Each step of the process can be challenging for those who are experiencing mental health conditions. Some of the challenges relate to the technicality and difficulty in understanding the Scheme and trying to navigate the process. Other challenges caused by mental health stigmas reside at a work culture, and at societal level.
For workers with psychological injuries, the level of WC specific knowledge prior to the injury could help speed up their learning process. The subsequent technical challenge on providing factual and comprehensive injury evidence can be supported by experts such as: experienced advocators, professional legal bodies like WC lawyer and employment lawyer.
The causes of a psychological injury are multifaced, triggered by a range of factors and they can present in subtle and indirect ways. Gathering and organising such proof evidence demands the worker to maintain accurate records and a dairy of events.
The prevention of a psychological injury is far more complicated and nuanced than physical injuries. While a WHS inspector can find non-compliance via a routine inspection in the physical working environment, psychological hazards are much harder to be identified. Workers first-hand injury reports can facilitate employers in the management and prevention of such hazards, and therefore should be supported.
Despite the challenging technicalities, the real elephant in the room is mental health stigmas. It stops workers from seeking help, can diminish one’s sense of belonging and takes away collective opportunities to identify and address psychological hazards.
Some argue stigma as a phenomenon is seen as inherent in the social structures that make up society (Corrigan and Watson, 2002). In order to foster a healthier workplace, at a macro level, changes need to be further reflected in the way the workplace, social services, law, and the justice system are structured and operate.
Back to the present moment, zooming out from the ‘common good’, one open-ended question to think about: ???????? ?????? ???? ???? ???? ???????? ???????? ?? ???????????? ?????????? ???? ???????? ???????????????? ?????????????????? ???? ?????? ???????????????? ???????????? ???????? ?????? ???? ?????????????? ???? ?????????????
We spend a lot of time at work. ‘The workplace’ itself is life too.
References?
Australian Productivity Commission Inquiry Report (2020). Mental Health, No.95, 30 June 2020. (URL)?
Comcare (2021). Mental health stigma in the workplace. Webpage (URL)
Corrigan PW, Watson AC (2002). Understanding the impact of stigma on people with mental illness. World Psychiatry Feb (1), PMID: 16946807, 16-20. (URL)
Healthdirect (2021). Mental illness stigma, Webpage (URL)
Safe work Australia (2011). Key Workers’ Compensation Information, Australia. Webpage (URL)
Safe work Australia (2023). Workers’ compensation for psychological injuries. Webpage (URL)
State Insurance Regulatory Authority (2023). Workers compensation guide for employers: when a worker is injured. Webpage (URL)
Sweller, J., van Merri?nboer, J.J.G. & Paas, F (2019). Cognitive Architecture and Instructional Design: 20 Years Later. Educ Psychol Rev 31, 261–292 (URL)