Leading employment lawyer says proposed changes in NSW to workers compensation claims for psychological injuries raise concerns for both employers and employees
A proposed overhaul of workers compensation claims for psychological injuries could raise the bar for claims, leading employment lawyers have flagged.
A senior consultant in the employee relations and safety and safety team at King, Wood, Mallesons, Brett Feltham said the proposed amendments to the NSW workers compensation system raise concerns for both employers and employees.
“The amendments will considerably limit NSW workers in bringing psychological injury claims, which had doubled in the past six years and raised concerns for the longer-term viability of the current system,” he said.
An insights report by KWM on the workers compensation changes co-authored by Feltham, Andrew Gray and Rubsat Amin said the most significant effect of the proposed changes was that for a worker to make a compensation claim for psychological injury, for example for harassment or bullying, they would first need to have some form of bullying or harassment claim heard by a court or tribunal and a finding that such conduct has occurred.
“Workers will only then be able to formally notify their employer of their claim after such a finding,” the report said.
“This could act as a significant deterrent to workers seeking compensation for psychological injuries - while it may lead to unmeritorious compensation claims not being progressed, it could also have the unwanted effect of stifling genuine claims for compensation where workers have suffered serious psychological injury.”
The NSW Government has launched a parliamentary enquiry into the proposed workers compensation changes, saying the status quo was failing workers and businesses.
In a statement released earlier this month, the government said health and safety and workers compensation laws are failing to both prevent psychological injuries and treat people quickly.
“Under the current system, only 50 per cent of workers with a psychological injury are returning to work within a year. The rate is 95 per cent for workers with a physical injury,” it said.
“The system currently spends seven times more on keeping an injured worker away from the workplace than it spends on getting them healthy and back on the job.”
Feltham said currently many workplace harassment or bullying disputes do not lead to a finding that specific conduct has occurred with the focus on an agreed resolution without the need for a formal hearing or finding.
“It is unclear what will be required to find harassment or bullying has occurred,” he said.
“The unintended consequence could be that not only are more bullying, and harassment claims commenced, but that more of those claims progress to contested hearings so that a compensation claim can then be brought.
“This is likely to lead to higher legal costs for both employers and employees, delays in outcomes and an increased use of judicial and tribunal resources.
“The details of the further changes, including a draft bill to amend the Industrial Relations Act, have yet to be released. As always, the devil may be in the detail.”
