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Emotional Distress: Can I Sue Workcover For Mishandling My Claim?

It is extremely common for injured persons on Workcover to complain about how the Workcover claims manager treats them throughout their recovery. It’s also reasonably common for injured workers to feel that they have been treated so unfairly and prejudicially that it’s caused them emotional distress or a psychological injury.

Whilst on Workcover, an injured worker will likely feel under a lot of emotional pressure because recovering from a serious personal injury is a very stressful situation to be in. However, any emotional and psychological symptoms that develop could indicate that a further psychological injury has been sustained.

A psychological injury sustained whilst receiving or applying for Workcover benefits could be caused by either:

  • harsh communication, or unfair decisions by a workers’ compensation claims officer that adversely affect your ability to reach a full recovery; or
  • developed over time in connection with a prolonged and difficult recovery of physical injuries.

In Queensland, your rights are different depending on the cause of distress.

Please note that this article does not discuss psychological injuries sustained at work, or in the course of your employment, which could give rise to an entitlement to apply for workers’ compensation.

So, what can be done when a psychological injury is caused by a Workcover claims officer? Unfortunately, not a great deal.

Workcover’s Immunity Under the Workers Compensation and Rehabilitation Act

Section 108 of the Workers Compensation and Rehabilitation Act 2003 (Qld) sets out that compensation is payable under this Act for an injury sustained by a worker.

Section 32 of the Act defines what an injury is for the purpose of one’s entitlement to compensation. It also defines what a compensable injury is not.

Specifically, at subsection 32(5) the Act says that a compensable injury does not include a psychiatric or psychological disorder arising out of, or in the course of, an action by the Regulator or an insurer (such as Workcover Queensland) in connection with the worker’s application for compensation.

Because of Section 32, it is clear that even if a Workcover claims officer mistreats or mishandles an injured worker’s claim and causes the worker to sustain a further psychological injury, that additional injury is not compensable. As such, there is no right to sue Workcover or the claims officer for acquiring such a psychological injury.

However, if a worker sustains a psychological injury in addition to a physical injury throughout the Workcover claims process, there is a fair chance that anger towards the claims officer may be misdirected. It is relatively common for individuals to develop secondary psychological injuries (such as adjustment disorder) following a serious physical injury. The exact prevalence varies depending on the population studied and the severity of the injury, but research suggests that up to 50% of people with a serious physical injury may experience some form of psychological distress or disorder.

A common psychological disorder relating directly to a difficult recovery from a physical injury – such as adjustment disorder – may be a compensable injury under the Act as Section 32(5) would not apply.

Emotional Distress vs Psychological Injuries: Getting Compensation

Adjustment disorder is a type of psychological injury that is characterised by a set of emotional and behavioural symptoms that occur in response to a significant life stressor, such as a serious physical injury. These symptoms may include feelings of sadness, anxiety, or worry, as well as changes in behaviour or social withdrawal.

The development of adjustment disorder following a serious physical injury is often related to a range of factors, including the severity of the injury, the person’s pre-injury mental health status, and the level of social support available to the person during their recovery. In this regard, whilst Workcover claims officers provide some support in terms of coordinating your medical appointments and return to work efforts, it isn’t exactly a ‘social’ support. Having your life in a claims manager’s hands can feel particularly distressing when decisions are made that you don’t agree with.

Expressing your frustrations or lodging a formal complaint against your claims officer may result in you being issued a new claims officer, however it probably won’t change the status quo. There is also the worker’s compensation regulator who can step in to review decisions made by Workcover if requested by you.

However, it is important to recognise that the emotional distress you feel against Workcover or one of their claims officers may in fact be something more serious, such as adjustment disorder.

If you have experienced a serious physical injury and are struggling with psychological distress, it is important to seek professional help. An appropriately qualified mental health professional can work with you to develop an individualised treatment plan to help you manage your symptoms and support your recovery. The process can be started by a simple visit to your general practitioner.

If diagnosed and managed the right way, any secondary psychological symptoms have a fair chance of being attributed to your physical injury and not to the workers’ compensation claim process. In our experience, dealing with Workcover may cause an injured worker simple and temporary emotional distress – but a psychological injury is more often than not associated with other compensable injuries.

A psychological injury that’s connected to a compensable physical injury may be added and accepted by Workcover as an additional compensable injury.

Get Expert Advice from a Workers’ Compensation Lawyer

Any claim for workers’ compensation can benefit greatly from a strategic review from an experienced workers compensation solicitor

If you’re on Workcover and you’re unsure whether you’re receiving all the benefits available to you under the legislation, including being appropriately compensated for secondary psychological injuries, contact Roche Legal today for a free consultation.

Early intervention by a skilled personal injuries lawyer can help course-correct any inappropriate handling of your claim and ensure that your emotional well-being is properly compensated within the limits of the law.

This commentary is published by Roche Legal for general information purposes only and should not be relied on as specific advice. The content relates to Queensland law only and is subject to change over time. You should seek legal advice for any question, or for any specific situation or proposal, before making any decision.