Every year at Clarity Workplace Solutions, we receive many hundreds of instructions from WorkCover Insurers/Claims Agents requesting a factual investigation on mental injury claims. In fact, over 80% of all the instructions we receive following the submission of those claims and prior to the Agents’ liability decision, are mental injury claims.
The causes of a workplace mental injury include, but are not limited to, workplace bullying, excessive workload, exposure to a traumatic event or unfair action taken by management. However, the difficulty and complexity of knowing all the facts required to make an informed and valid decision about a Claimant’s work-related mental injury is the very reason so many such claims are investigated.
Employers are exempt from liability if the mental injury is caused wholly or predominately by management action taken on reasonable grounds and conducted in a reasonable manner. Accordingly, WorkCover (and hence the Employer) is not liable for the claim if the injury is due to “reasonable management action” by the Employer.
Management action is broadly defined and includes demotion, promotion, transfer, performance appraisal, disciplinary action, reclassification, retrenchment or dismissal of workers or provision of employment benefits to workers. In determining liability, WorkCover needs to know the factual circumstances on which the claim is based and whether the Employer’s management action was taken on reasonable grounds and in a reasonable manner.
If WorkCover determines that the Employer acted reasonably it will not accept liability. Agents therefore need objective and comprehensive factual information surrounding the cause of the mental injury.
I have listed below the most common questions Agents want answers to from our factual investigation reports:
1. What does the Employer know about the Claimant’s claimed injury and how the Claimant says it occurred?
2. Were there any issues with the Claimant’s work performance? What action was taken by the Employer in response thereto?
3. What were the relevant communications between the Employer and the Claimant, including but not limited to notes, performance reviews, equal employment opportunity policies (if applicable), disciplinary policies (if applicable).
4. If bullying and harassment or overwork are alleged, what actions were undertaken by the Employer to address this (pre and post claim)? How does the Employer explain their knowledge and understanding of the bullying and harassment alleged, their policy and its application in the workplace?
5. Obtain copies of the employment contract, employer performance management and/or grievance procedures and any other relevant documentation. Were these procedures followed? Were any, and if so what, changes made and why?
6. Identify any interpersonal conflicts within the work environment. For example, between the Claimant, manager, their co-workers and/or clients.
7. Has the Claimant had any promotions, job reclassifications or demotions during their employment?
8. Are there are deadlines, penalties or bonuses associated with the Claimant’s position? What happens if the Claimant fails to meet the targets?
9. Was the Claimant counseled before or after the injury either formally or informally?
10. If the Claimant had been referred for counseling, to whom and how often?
11. Are there any factors outside the work environment that may have impacted on the Claimant prior to the lodgement of the claim?
12. What does the Claimant say caused their mental injury? Who were the people involved and what did they do?
13. What medical treatment has the Claimant received and from whom?
14. Has the Claimant previously suffered from this type of injury or condition with their current or previous employer? Has the Claimant lodged any previous claims?
15. Does the Claimant have any pre-existing health issues relevant to the claimed injury?
16. Does the Employer or Claimant have any other comments they wish to make in direct relationship to the claim?
In addition to the above, our investigation will also conduct other enquiries about the circumstances that we consider directly relevant to the Claimant’s claimed injury and/or conditions.
We are often asked by Employers why we need to investigate something which HR have already investigated. The simple answer is that there are different issues and considerations on which WorkCover decisions are made and it requires an independent and comprehensive investigation to do so.
Hopefully, I have outlined above that workers’ compensation factual investigations have a different purpose and scope to what the Employer may undertake from a HR perspective.
Vincent Quattropani, BEc CA FGIA FCG MAHRI, Founder & Managing Director at Clarity Workplace Solutions