Workplace Attorney Baldivis

In Western Australia, a Workers’ compensation claim can be made if you suffer from stress, anxiety, depression or other mental illness that is significantly contributed by particular work related actions, events or exposures.

There are, however, certain exclusions where the stress injury arises wholly or predominantly from certain industrial actions taken by the employer where these actions are not harsh and unreasonable. 

Safe Work Australia provides some examples of causes of work related stress or mental illness:

• Work pressure—mental stress arising from work responsibilities and workloads, deadlines, organisational restructure, workplace conflicts and workplace performance or promotion issues;

• Work-related harassment &/or workplace bullying—repetitive assault and/or threatened assault by a work colleague or colleagues; and repetitive verbal harassment, threats, and abuse from a work colleague or colleagues;

• Exposure to workplace or occupational violence—includes being the victim of assault by a person or persons who may or may not be work colleagues; and being a victim of or witnessing bank robberies, hold-ups and other violent events;

• Exposure to a traumatic event—disorders arising from witnessing a fatal or other incident;

• Other harassment—being the victim of sexual or racial harassment by a person or persons including work colleague/s.

You need to satisfy the criteria of having a recognised psychiatric injury. In simple terms, if you have attended a GP, psychologist or psychiatrist in regards to work related stress or mental health issues, and have been certified unfit for work, you may be able to make a claim.

If your workers’ compensation claim is accepted by the insurer you may be entitled to compensation for loss of wages, permanent impairment and treatment expenses.

Permanent Impairment

This is assessed under Guides published by Workcover WA. When you have reached maximum medical improvement, a Workcover approved doctor can assess the level of permanent impairment. Entitlements can then be calculated under a table in the applicable legislation known as the the “Second Schedule”.

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Loss of Wages

If you are unfit for work due to your injury or illness, you are entitled to weekly compensation payments on your usual pay days. Your employer can be penalised if they do not make your compensation payments in accordance with your usual wage payment process.

Unless you are under an award, wages will usually be reduced to 85% of your wages after the 13th week post injury, subject to a cap.

The maximum amount of compensation or weekly payments you can receive for loss of earnings is referred to as the ‘prescribed amount’. In special circumstances, if you are unable to return to work, these payments can be extended.

Treatment Expenses

You are entitled to be compensated for reasonable medical and rehabilitation expenses as well as other costs, such as travel and lodging.

The medical and rehabilitation expenses that can be claimed include:

• first aid, paramedic and ambulance costs;

• medication and prescriptions;

• medical or surgical treatment;

• nursing services;

• X-rays, CT and CAT scans, MRI’s and Ultrasounds;

• medical aids and equipment;

• treatment by medical or rehabilitation specialists;

• dental treatment;

• physiotherapy services;

• chiropractic services; and

• other medical treatments, including occupational therapy, speech pathology, exercise physiology, osteopathy and clinical psychology.

You are entitled to attend medical and rehabilitation providers of your choice. There are caps under the applicable legislation in relation to funding for treatment and rehabilitation.

Travel and lodging expenses that can be claimed include:

• travel expenses incurred whenever you are required by a medical practitioner, your employer or their insurer to attend a medical or rehabilitation appointment; and

• reasonable accommodation and meal expenses for workers required to travel long distances in order to seek treatment or rehabilitation.

Preferably within 12 months from the Date of Accident.

There are a number of critical dates that must be complied with in order to successfully make either a workers’ compensation or common law claim.

If a workers’ compensation claim is lodged with the employer more than 1 year from the date of accident the insurer may legitimately deny the claim if they can prove material prejudice.

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Termination Date Time Limits

Workers must take steps to preserve their common law rights by obtaining a whole person impairment assessment from a Workcover Approved Medical Specialist and file an election before the expiration of a 12 month termination date. In a usual case where workers’ compensation liability is accepted by the insurer, this period will commence to run from the date the claim for weekly payments was lodged. There is scope for extension of this 12 month period only if the strict legislative criteria is fulfilled, and an application to extend should be brought before the period expires.

We strongly recommend that you see Soul Legal well before the expiration of the termination date. Failure to do so may well result in the loss of your common law rights and entitlements. 

There is usually also a Three Year Statute of Limitation Period for common law claims involving third parties. The 3 year statute of limitation period applies from the date of accident.

The legislation provides a broad definition of the term ‘injury’ and includes easily identifiable work accidents, illnesses that developed over time or an aggravation or exacerbation of a pre-existing medical condition. This means that you do not necessarily have to prove a specific accident to make a claim for workers’ compensation. It is not uncommon to have a claim arising from symptoms that have developed gradually over a period in employment from repeated exposure or activity (eg. repeated daily lifting of heavy machinery or  equipment).