How is an injury work-related?
Workers Compensation covers injuries that are 'work-related'.
This includes Psychological injuries
Work Related Injuries
In order for the injury or illness to be considered work related, and to be seen as having arisen 'out of/or in the course of employment', there must be evidence of a link between the work and the cause of the injury. Clearly, if you fell over at work or got your hand caught in a mincer it is easy to see that the injury occurred because you were working. But not all injuries occur like this.
There are other types of injuries which arise because of the 'nature and conditions' of the work that you do, and over a period of time such conditions may cause wear and tear on your body. Then, one day, something happens that is 'the straw that break the camels back' or, what started as a small niggle or pull, just will not go away and has become worse and you are unable to continue working.
Importantly, even if you cannot identify a specific incident that caused the injury/illness it could still be a compensable injury.
Substantial Contributing Factor
Not all injuries suffered in the course of employment will be compensable. The legislation requires that the employment must also be a substantial contributing factor to the injury (s 9A).
This means that work has to have been one of the main causes of the injury or illness. But you will need to remember that work does not have to be the only cause.
In a nutshell:
* The circumstances of the employment must play a real part in causing the injury or illness
* Work does not have to be the only cause, or the major cause, or even an equal cause to be substantial
* Where there are multiple causes, work does not need to be the dominant cause
* It is a question of judgement made by the insurer based on evidence provided by the injured worker and the employer
* On the day, it will be the personal judgement of the individual judge as to what is 'substantial'.
The assessment of whether work is a substantial contributing factor is based on a subjective, not an objective standard, and as long as this is the case it will be interpreted in the same way as the overall Workers Compensation Act, that is, positively in favour of the worker.
Remember, now, claims are notification and claims driven. Provisional benefits for compensation must be commenced within 7 days, unless there is a reasonable excuse, otherwise the injured worker and/or the union can lodge an application in the Workers Compensation court for an interim payments direction.
The insurer will then be required to provide evidence to establish their defence in accordance with Section 9A of the At.
You should contact the
Psychological Injury
If you suffer a psychological injury caused wholly or predominantly by the 'reasonable action' taken or proposed to be taken by the company in relation to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal, then the injury is not compensable (s11A(1) WCA).
If, however, the company deals with the reasonable action (that is the transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal) in an 'unreasonable way', then the psychological injury may well be compensable.
Again, contact the
Some work related injuries are obvious, others are not as obvious:
The nature and conditions of your employment may result in wear and tear which eventually causes significant pain or incapacity or stops you from working - this could well be a long term work related condition.
Whilst work must be a substantial contributing factor to the injury or illness it does not have to be the only or the main contributing factor.
Psychological injuries are not compensable if they are a result of transfer, demotion, promotion, performance appraisal, discipline, retrenchment and/or dismissal where the employer has acted in a reasonable way.
Contact the
Source 'Not Safe. Not On.' AMIEU NSW
