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A mental disorder can affect a person’s capacity to work. There are various causes of mental disorders (or stress and anxiety) such as:
- exposure by a worker to a traumatic event;
- occupational violence against a worker;
- harassment against a worker;
- work pressure;
- bullying directed at a worker.
A mental disorder sustained during your employment, to which such employment contributed, may entitle you to receive financial compensation as stipulated by the Workers’ Compensation and Injury Management Act 1981 (WA) (Act). All employers in WA are required by law to have a valid and current workers’ compensation insurance policy covering all employees for injuries or illness sustained at work. A & E Legal can assist.
Our experienced solicitors will engage on your behalf and assist you with lodging a claim with your employer (and its insurer) for the compensation that you deserve resulting from your mental injury, which should ultimately resolve by settlement or progression to a Conciliation or Arbitration at WorkCover WA.
Can I Claim?
Anyone who is defined as a worker pursuant to the Act has a claim for workers’ compensation entitlements. The Act defines a “worker” in section 5 as a worker who is:
- on commission;
- a contractor and sub-contractor (with exceptions); and
- a working director (with exceptions).
What can I claim?
You can claim for loss of earnings (also known as weekly payments), payable to you in the same manner and frequency that you are normally paid. Weekly payment amounts are capped (limited) to twice the average weekly earnings for an adult in WA.
You can also claim for medical expenses such as:
- First Aid;
- GP and specialist attendances;
Rehabilitation costs to assist you in staying in or returning to work due to the psychiatric injury sustained at work are also claimable.
Your reasonable travelling expenses incurred for trips to and from the medical treatments and appointments as well as trips to the rehabilitation provider are all claimable. You should keep a record of all such trips. If you live outside Perth, the costs of accommodation and meals are also claimable.
Can I still claim if I suffered stress and anxiety in the past?
Stress related claims are compensable in WA if you can establish that your work contributed to your illness to a significant degree. You will still have a claim if you had a pre-existing mental disorder as long as your work stress is a significant or substantial contributor to your current mental condition.
When will my stress claim be rejected?
The Act contains certain provisions that limit the scope of stress claims where the stress arises out of various management and industrial relations issues, in other words the act excludes any claim caused by stress if the stress arises from any of the following:
- your dismissal;
- your retrenchment;
- your demotion;
- disciplinary proceedings against you;
- your transfer or redeployment;
- not being promoted;
- having been reclassified in a job description;
- you not being transferred or granted leave of absence or any other benefit.
However, if the abovementioned exclusions were unreasonable and harsh on the part of your employer, you may potentially have a claim for stress arising out of one of the exclusions.
Am I entitled to a lump sum payment?
You may be entitled to an additional lump sum payment (Schedule 2 payment) from the employer or its insurer if your psychiatric illness is a permanent psychological impairment. This is dependent on the nature and extent of your injury after having been evaluated by a doctor (Approved Medical Specialist) who will provide your Whole of Person Impairment (WPI) expressed as a percentage. The WPI assessment is normally provided when your condition has stabilised and will not change.
What are common law damages?
You may also be entitled to sue your employer in the District Court of WA in certain circumstances for common law damages. These are damages that may be awarded to you by a judge (or agreed upon with your employer or its insurer prior to trial). To be awarded common law damages you will have to prove that the psychiatric illness you sustained at work was due to the negligence of your employer.
You have to comply with the following to commence a common law claim in the District Court of WA:
- your WPI assessment must be 15% or more; and
- you must indicate your willingness to commence common law proceedings by electing to do so on an Election to Retain Right to Seek Damages Form before the Termination Day.
As an example, in the matter of Wilson v Riverton Rossmoyne Bowling and Recreational Club Inc  WADC 54, the Plaintiff (Ms Wilson) worked as a casual barmaid for the Club. Ms Wilson elected to retain her right to seek common law damages and commenced proceedings in the District Court alleging that the Club owed her a duty to take reasonable care for her safety in the course of her employment, namely that they had to ensure that the she was not bullied, harassed or intimidated in the course of her employment, which she alleges she experienced. The Club denied these allegations. After analysing a host of evidence by various witnesses, both expert and casual, the Court concluded that the Ms Wilson had not been subjected to workplace bullying and that it was not reasonably foreseeable to the Defendant that she would suffer a psychiatric injury. In any event, the Court was not satisfied, on the available medical evidence, that Ms Wilson had sustained a psychiatric injury resulting in a whole of person impairment (WPI) of at least 15%, for which the Club would be liable.
What is my Termination Day?
The Termination Day is defined in section 93M of the Act to be a date one year from the date that your claim for weekly payments was made with your employer. If after a period of 3 months from when the claim is made with your employer, you are notified that the claim has been accepted then the Termination Day is 9 months after you were so notified.
When and how should I lodge a claim?
You should report the condition immediately and do the following steps:
- seek immediate medical assistance;
- report the condition to your employer if you able to do so;
- go to the GP of your choice;
- request your GP to complete a First Certificate of Capacity;
- request a Claim Form from your employer;
- complete the Claim Form and hand it to your employer with a copy of the First Certificate of Capacity as soon as possible within 12 months from the injury; and
- keep copies of all documents
Are there time limits I should know about?
You are required to submit a notice of a mental disease and make a claim for compensation as soon as practicable after an injury. If you allow the expiry of 12 months from the date of the injury, you would need to obtain legal advice, as it may be too late if you wait for the Termination Day to approach. If you do not proceed with a legal claim (not just reporting a workers’ compensation claim) immediately, then you may lose your right to claim.
We recommend that you contact us as soon as possible.
How long will it take and how much does it cost?
We will attempt to get through the claim procedure as quickly as possible by seeking the relevant expert medical advice from your doctors to ensure that your claim is settled at the right time. We will answer all your questions about legal costs at the first free consultation with you. However, in the event of a successful resolution of your claim, your employer or its insurer will make a contribution to cover some of the costs.
Is the first consultation free?
The first consultation is free with no obligation on your part to proceed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.