Mental health, sleep and WorkCover injury claims

Monday 15 January 2018
Tina Toutzaris-Sabo

We all know that a good night sleep is often what the doctor ordered. However according to recent studies, Australian employees are not getting enough sleep and our children are not to blame (well not all the time). 

With greater reliance on technology, employees are online after hours and more accessible – making it difficult to fully switch off. Experts have recommended allowing one to two hours to unwind before going to bed, meaning no work emails or telephone calls. But how many of us actually do this?

A recent survey has revealed that 1 in 5 Australian employees experience work related insomnia, an initial sign of a mental health concern. 

Work related stress conditions have become a significant concern in our workplaces and for some, result in long term or permanent impairment, unproductivity and absenteeism. Due to the long held stigma associated with these conditions, employees are preferring to suffer in silence rather than disclose their concerns, until they reach breaking point.

Safe Work Australia has revealed that approximately $543 million is paid in workers’ compensation for work-related stress conditions. Another report has revealed that sleep deprivation is costing employers $3.7 billion and resulting in an average of 6.8 million sick days every year. 

For the sake of people’s health and our economy, it is clear that prevention or early intervention and a supportive work environment is a good starting point.

Senior Associate Tina Toutzaris-Sabo said that many, if not all, psychiatric reports made note of sleep disturbances.

“I regularly assist people who have developed a work-related injury, and have noticed a sharp increase in psychiatric injury WorkCover claims.

“Sadly, the law treats these claims differently and creates bigger hurdles for psychiatrically injured workers to jump through.”

In WorkCover law to qualify for lump sum compensation, an employee with a physical injury must be assessed at 5% or 10% whole person impairment, which is permanent. However employees who have suffered a psychiatric injury must be assessed at 30% or more permanent impairment to receive lump sum compensation.

The unfairness of these tests is evident, and in the majority of cases those with a severe psychiatric injury fall short of this threshold.

Employees wanting to sue their employer for further compensation must be granted permission by WorkSafe or a Judge to commence a ‘common law damages’ claim.  In order to seek this permission, the employee must first prove that they have suffered a permanent severe mental or behavioural disturbance/ disorder.  If permission is granted on this basis, a ‘serious injury certificate’ is awarded.

The next step is proving negligence on the employer’s behalf.  This is historically difficult to prove in psychiatric cases. 

The primary consideration is whether the psychiatric injury suffered was foreseeable by the employer and whether the employer failed to take steps to reduce the risk. If the Court considers that the risk of injury was not foreseeable, an employer is not required to take steps to respond to the risks and are not in breach of their duty of care obligations.

Not only do workers with a psychiatric injury feel stigmatised and often unsupported, the further layers of the law make it very difficult for those injured workers to be compensated for their injuries. 

If I had to overcome these hurdles, I would not be sleeping either.

Call a WorkCover expert directly on (03) 9321 9988 to discuss your claim.

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