When you suffer a physical or psychological injury at work, workers’ compensation is available to provide you with payment of your wages while you are off work, payment of your medical treatment expenses and supporting you with any necessary rehabilitation to return to work. In Queensland, it is compulsory for all employers to take out insurance with WorkCover Queensland, so if you suffer an injury or disease at work or while you are travelling to or from work, you are covered for compensation (including your family in fatalities). However, if being injured at work is not stressful enough, it can add insult to injury to receive a decision that your WorkCover claim has been rejected! This happens to thousands of injured people every year. Attwood Marshall Lawyers Compensation Law Associate, Henry Garrett, explains what injured workers can do to apply for a Review of a rejected WorkCover claim.
Introduction
When you are injured at work and submit an Application for Compensation, WorkCover are required to make a decision about whether the claim is accepted or denied.
The most common reasons WorkCover rejects a claim is because:
- The injured person is not considered a ‘worker’ under the Act;
- The injury was sustained outside of work hours;
- The injured person did not properly report the incident to their employer;
- The claim was lodged outside of the required timeframe (6 months from date of injury);
- The claim was filed in the wrong jurisdiction;
- For psychological injury – that the condition was caused by ‘reasonable management action’ taken by the employer.
The definition or meaning of an injury at work is set out in Section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act):
Meaning of injury
- An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
- However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
- Injury includes the following —
(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
(i) a personal injury;
(ii) a disease;
(iii)a medical condition, if the condition becomes a personal injury or disease because of the aggravation;
(c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
(d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
(e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
(f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation. - For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
- Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
(b) the worker’s expectation or perception of reasonable management action being taken against the worker;
(c) action by the Regulator or an insurer in connection with the worker’s application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way—
- action taken to transfer, demote, discipline, redeploy, retrench, or dismiss the worker
- a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment
It is estimated that of the 95,000 statutory workers’ compensation claims that are lodged in Queensland each year, an estimated 4 per cent of claims are rejected by WorkCover. That is roughly 3,800 claims declined each year.
Of the 3,800 claims rejected, roughly 2,570 are challenged by claimants who apply to have the decision reviewed by the Workers’ Compensation Regulatory Services.
It is estimated that the Workers’ Compensation Regulator upholds or confirms the WorkCover’s decision in 59 per cent of cases, leaving an estimated 1,170 rejected claims being overturned or varied in favour of the injured worker.
There are many injured workers who receive rejection letters for their claim and do not review the decision or wait too long (the Review must be lodged within 3 months of the decision), and may very well have a valid claim. Keep reading for these time limits.
It is important to get trusted legal advice from an experienced compensation lawyer if your workers’ compensation claim has been rejected so that you can find out what your rights are, what the process is to have the decision reviewed, and the likelihood of successfully making your claim. You may also have a common law claim for damages for negligence against your employer, which in most cases cannot be maintained unless you succeed in having your statutory compensation claim accepted by WorkCover.
Physical injuries vs psychological injuries: the staggering difference in rejected claims
When you look at the number of psychological and psychiatric claims rejected each year, compared to physical injury claims, the numbers are staggering.
In 2020-2021, 51.5 per cent of all psychological and psychiatric claims were rejected by WorkCover. This is a stark difference compared to 3.7 per cent of physical injury claims that were rejected the same year.
When claiming workers’ compensation for a psychological or psychiatric injury, the onus remains on the worker to prove that their employment was the substantive cause of their condition or injury, with exception to first responders who suffer PTSD on the job, where new legislation was introduced in 2020 to support first responders who developed PTSD as a result of experiencing traumatic events in their line of work.
The most common reason WorkCover deny psychological injury claims is that the psychological injury was caused or was the result of the “reasonable management action” of the Employer under Section 32 (5) of the Act. Employees often make psychological injury claims as a result of bullying, harassment, lack of procedural fairness, excessive workload and burnout, or lack of training. However, if an employer can prove that their action was ‘reasonable’, the onus will switch to the employee to once again prove that their injury was not caused wholly or predominantly by the actions of management, but by other work-related factors. Sometimes it is difficult to determine these issues because of conflicting evidence from the parties. It typically arises when an employee is being ‘performance managed’ by their employer and resents the change in circumstances. However, in many cases the actions of the employer are not ‘reasonable’ and their conduct causes or is a significant contributor to the psychological injury of the employee.
The higher awareness of these types of psychological conditions has led to a huge number of claims being made against employers, but sadly the majority of claims are being rejected incorrectly by WorkCover and this naturally caused further stress to the employee. It is very important to obtain legal advice from an experienced compensation lawyer who specialises in these types of difficult WorkCover claims. Not only will this ensure your rights are protected, it will also give you peace of mind having someone fighting for you in your corner.
Have you had your WorkCover claim rejected? The process to have the decision reviewed
If you have applied for workers’ compensation, and WorkCover have declined your claim, you have a right to dispute the decision by applying to the Workers’ Compensation Regulatory Services.
In Queensland, an application for review must be lodged within three months of receiving the written decision from WorkCover that your claim was denied.
If you fail to meet this time limitation you will not have another opportunity to challenge the decision. In New South Wales and Victoria, the time limitation is shorter, only giving you 60 days to dispute the decision.
To lodge an application for review, follow these steps:
- Arrange a free initial consultation at Attwood Marshall Lawyers with one of our Compensation Lawyers to have your case assessed and obtain advice of your likelihood to successfully challenge the decision.
- Complete an Application for Claim Review Form.
- Submit your reasons for requesting the review and why you believe the insurer has made the wrong decision. Your grounds for review must be relevant to the injury you have sustained and the claim. Within 1-2 days, WorkCover will deem your application compliant, meaning the appeal is approved, but still under review. Sometimes, WorkCover request some additional information before confirming compliance.
- Attach all supporting documents to the application. This includes medical reports, witness statements and written submissions as to why your decision is being disputed. The Review Officer will only be able to make a decision based on the information you provide them, so it is imperative to be as thorough as possible.
- Sign and submit the form with all supporting documentation to the Workers’ Compensation Regulatory Services before the three-month time limitation runs out. This can be emailed to
IMPORTANT: We do not recommend you complete the review without legal advice.
The review decision is generally made within 25 business days unless the Workers’ Compensation Regulatory Services have agreed to an extension. You will receive a written decision within 10 days after the decision has been made.
I have submitted a request to review WorkCover’s decision – what will happen next?
There are several outcomes that can follow a review of your claim decision. These can include:
- Win: The original decision of WorkCover is dismissed
- Lose : The original decision of WorkCover is upheld
- Variation: A variation be made to the original decision
- Information/Directions Required: Further information or directions are provided to the parties
Failing to lodge a review request in the three-month time limitation period
The Workers’ Compensation and Rehabilitation Act 2003 allows the Workers’ Compensation Regulatory Services to extend the legislative timeframes in special circumstances. Unless you can prove special circumstances have contributed to you being unable to meet this timeframe, in most cases, you will not be able to lodge a review outside of the three-month time limitation.
If you have medical appointments or documents that will not be available prior to the expiration of that timeframe, we recommend you submit the application without it, obtain compliance, and then provide the additional information once it becomes available. Often, you will have a few weeks to provide more information once your review is underway.
Unhappy with the review decision? All hope is not lost – you can appeal!
If you have applied for a review of a decision and the decision of WorkCover is upheld, you will be required to lodge an appeal with the Commission.
An application must be lodged with the Queensland Industrial Relations Commission against the Workers’ Compensation Regulator within 20 business days of receiving the review decision.
Once a Notice of Appeal is lodged, the Commission will issue directions for the management of the appeal. These directions will include the due dates when documents must be filed and provided to other parties, and when a conference or hearing will take place.
Attwood Marshall Lawyers – helping injured workers access the treatment and compensation they are entitled to
As a leading Compensation Law firm, our lawyers are well-versed at ensuring injured workers gain access to their full entitlements when they suffer a physical or psychological injury at work.
We want to help you get the treatment you need so that you can get your life back on track and get back to work.
Whether you want to find out more information about making a workers’ compensation claim, or want to understand your rights after receiving a letter from WorkCover that your claim has been denied, we can review your case and help you understand what steps to take.
Contact our Compensation Law Department on 1800 621 071 any time. You can meet with our Compensation Lawyers at any of our conveniently located offices at Coolangatta, Robina Town Centre, Kingscliff, Brisbane, Sydney, and Melbourne. Book online now!
Read more:
The mental health effect of COVID-19 – increase in WorkCover psychological claims during pandemic
Injured at work? Easy steps to claim WorkCover compensation
Proving what you cannot see – Workers’ Compensation and Post-Traumatic Stress Disorder (PTSD)
