If you're suffering stress and unable to work, the National Employment Standards entitle you to paid sick leave. This is available to all employees except casuals and is for any injury or illness, including stress and pregnancy-related illnesses. But what if the stress you are experiencing is related to your work? Are you able to make a worker's compensation claim for stress in NSW?
The short answer is yes. This would be a worker's compensation claim for psychological illness, namely stress.
If your stress-related illness is caused by your work, you may be entitled to:
- weekly payments to cover your wages for the time you are not at work;
- the cost of reasonable medical expenses; and
- depending on the severity of your illness, lump sum payments.
If it's found that your employer's negligence caused your illness, you might also be able to claim for what is known as a Work Injury Damages lump sum (a common law claim).
Unrelated to your worker's compensation claim (and in addition to that claim), if your injury or illness prevents you from returning to your job, you may also be able to make a total and permanent disablement (TPD) claim through the insurance you have in your super fund.
How do I make a worker's compensation claim in NSW?
You cannot make a worker's compensation claim for 'stress' as such. If you have a stress-related condition, you may be able to make a claim for a 'psychological or psychiatric injury'.
It is vitally important that your GP correctly identifies your psychological condition on your WorkCover Certificate ("Certificate of Capacity"); for example, 'adjustment disorder'. If the doctor refers to your injury as just 'stress', your claim will most likely be declined or rejected.
You will need to show that you have a diagnosed psychological condition that has been caused by a particular event or events at work and that your work was a significant contributing factor.
Obtaining treatment for your condition should be your first and foremost priority. For example, visiting your GP or treating practitioner and obtaining a correctly completed Certificate of Capacity, and being referred to a psychologist or psychiatrist for treatment specific to your condition.
A worker's compensation claim in NSW should be made within six months of becoming aware of your psychological injury. There are limited circumstances where a claim 'out of time' may be accepted but the best thing to do is lodge your claim within the six-month time limit. You can learn more detail about the claim's process in our blog, "How to claim workers compensation in NSW".
In NSW, your worker's compensation claim is commenced by:
- obtaining the abovementioned Certificate of Capacity from your GP or treating practitioner;
- completing a Worker's Injury Claim Form which you can download here; and
- forwarding both the form and the medical certificate to your employer.
If you are uncertain about completing the claim form, your solicitor will be able to assist you.
Speak with a workers compensation lawyer today: 1800 659 114
Your employer has seven days to forward the Certificate of Capacity and claim form to their worker's compensation insurer.
What happens once I've submitted my worker's compensation claim?
More often than not, worker's compensation insurers will often deny psychological injury claims in the first instance.
As previously stated, to make a worker's compensation claim, you need to prove that the psychological/psychiatric injury occurred during your employment and that your work was the cause or was a significant contributing factor.
Although this can be difficult to prove, a lawyer can collate the evidence to support your claim. Having someone experienced in worker's compensation claims working with you gives you the time and energy to concentrate on getting better.
Your lawyer can help by:
- meeting with you to gain an in-depth understanding of your situation;
- compiling a statement;
- obtaining copies of your clinical notes from your treating practitioners;
- gathering witness statements; and
- organising medical/psychological assessments conducted by a SIRA-approved Independent Medical Specialist.
The insurer may also require you to attend a medical/psychological assessment, again conducted by a SIRA-approved Independent Medical Specialist. If the insurer arranges such an assessment, it is compulsory for you to attend.
They may also have you meet with an investigator to obtain detailed information from you regarding the circumstances surrounding your injury. The investigator will prepare a report for the insurer and a statement from you and any witnesses. Those witnesses are most likely to be your fellow employees.
What worker's compensation benefits will I receive in NSW?
Weekly payments
Once your claim is approved, generally your weekly worker's compensation payments will commence and continue until:
- you have been able to return to work;
- you reach a Work Injury Damages settlement (a lump sum payment involving employer negligence);
- you have been receiving worker's compensation payments for five years (unless your whole person impairment is greater than 20% and you have been assessed as being unable to work for an indefinite period);
- you reach the maximum total weekly compensation limit;
- you reach retirement age plus one year (the average age of retirement in Australia is currently between the ages of 62 and 65).
You can learn more detail about these payments in our article, "Worker's compensation NSW - entitlements to weekly payments".
Lump sum payment for permanent impairment
Depending on the severity of your illness, you may be entitled to a lump sum payment for permanent impairment. You can learn more about this compensation component in our article, "Worker's compensation NSW - lump sum claims for permanent impairment".
Medical expenses
You will have access to payments to cover medical expenses, including medical treatment, hospital treatment, ambulance fees, and travel expenses to attend medical appointments.
You can learn more detail about medical expenses available to you in our article, "Worker's compensation claims NSW - your entitlement to medical and other expenses".
Work Injury Damages lump sum
If you have been diagnosed with a psychological injury resulting from your employer's negligence, you may be entitled to sue your employer for a Work Injury Damages lump sum.
To be eligible for this lump sum, you will need to:
- make a successful claim for worker's compensation;
- have at least 15% whole person permanent impairment and have this assessment accepted by the insurer or determined by the Personal Injury Commission; and
- have been paid all statutory lump-sum payouts for permanent impairment that you are entitled to.
All these criteria must be met before a work injury damages claim can be settled.
Can my employer terminate me if I am on worker's compensation?
The NSW Workers Compensation Act 1987 essentially prevents employers from terminating an employee who has sustained a work injury purely because they are unfit to resume work within the first six months.
During this 'protected period,' if an employer terminates an injured worker's employment because they are not fit for employment because of the injury, then the employer may be liable to pay a fine of up to $11,000. The employee may also be eligible to lodge an unfair dismissal claim.
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.
