How adjustment to injury counselling can leave workers shortchanged

In the post-COVID-19 era, psychological injuries are squarely in the public spotlight and at the forefront of many minds within the personal injury and claims management space, writes Jonathon Wright.

In the post-COVID-19 era, psychological injuries are squarely in the public spotlight and at the forefront of many minds within the personal injury and claims management space. Many people will be aware of the recent implementation of Queensland’s Code of Practice on “Managing the Risks of Psychosocial Hazards at Work”, along with the recent High Court decision of Elisha v Vision Australia Limited. One could say the focus in recent times has been on primary psychological injuries.

However, there is another type of psychological injury often referred to as secondary mental injury. These arise after and because of a physical injury. Secondary mental injuries were recently considered in the Final Report dated 28 June 2023 produced because of the five-yearly review of the operation of the Queensland workers’ compensation scheme. The report noted that the number of claims with a secondary mental injury has proportionately more than doubled in 2020–2021 compared to 2012–2013. The report also noted that statutory workers’ compensation claims with a secondary mental injury have a significantly higher likelihood of becoming common law claims compared to workers’ compensation claims for straight physical injuries or primary mental injuries.

Given these statistics, it is not surprising that Queensland’s largest workers’ compensation insurer, WorkCover Queensland, is attempting to proactively manage the mental health of injured workers. This usually takes the form of WorkCover offering a specified number of “adjustment to injury counselling” sessions if an injured worker starts displaying signs of, or reports, suffering mental health symptoms.

The issue that I’ve seen is that sometimes an injured worker thinks that WorkCover has accepted a secondary mental injury as part of their ongoing statutory workers’ compensation claim when, in fact, they are simply receiving the benefits of the adjustment to injury counselling.

To have a secondary mental injury added to an accepted WorkCover statutory workers’ compensation claim, an injured person must obtain a workers’ compensation medical certificate listing a psychological injury diagnosis and linking it to the subject work event, provide that to WorkCover and have the injury formally accepted.

The confusion is unsurprising given that the injured person often deals with significant disruption to their work and home life caused by their injuries while also being unfamiliar with WorkCover’s processes.

The issue becomes a real problem if the injured person’s physical injury becomes ‘stable and stationary’ quickly after the workplace incident. In these cases, I have seen WorkCover take steps to close the statutory claim, notwithstanding the injured person was still receiving “adjustment to injury counselling” and reporting ongoing psychological symptoms. The injured person was unaware their psychological injury had not been accepted and was distressed regarding the closure of their statutory claim.

The lack of a determination regarding a secondary mental injury also causes an injustice if the injured person has no prospects of pursuing a common law damages claim. In those circumstances, if the secondary mental injury is not formally determined and accepted as an injury in the statutory claim, the injured person misses out on the opportunity to have that injury assessed for permanent impairment and any potential lump-sum compensation they may be entitled to.

The issue can also impact common law damages claims. If the secondary mental injury is not formally accepted during the statutory claim, the onus falls on the injured person to produce evidence to support the injury in the common law claim under WorkCover’s “unassessed injury protocol”.

While we support the use of WorkCover’s “adjustment to injury counselling” services as a fast and beneficial support mechanism for workers with psychological injury, it cannot and must not be used as a Band-Aid for secondary mental injuries. In those circumstances, injured workers should be clearly informed that the provision of adjustment to injury counselling is not a formal acceptance of their psychological injury and explained what is needed to have their psychological injury accepted as part of and prior to the conclusion of their statutory claim.

Jonathon Wright is a senior associate at Travis Schultz & Partners.