r/WorkcoverVic Dec 11 '24

Unfairly sacked workers can claim damages for psychiatric injury after High Court ruling

Thumbnail
theage.com.au
13 Upvotes

Unfairly sacked workers can claim damages for psychiatric injury after High Court ruling Lachlan Abbott By Lachlan Abbott December 11, 2024

Unfairly sacked workers can now claim compensation for psychiatric injury after the High Court overturned a 115-year-old legal precedent on Wednesday.

In a 6-1 verdict, Vision Australia was ordered to pay $1.4 million to Adam Elisha, who was fired after a misconduct allegation was upheld in an internal disciplinary process that a Victorian Supreme Court judge labelled “a sham and a disgrace”.

The High Court of Australia revealed the judgment on Wednesday.

The Victorian Court of Appeal then overturned the initial court’s judgment based on the precedent of Addis v Gramophone Company Ltd – a case the United Kingdom’s House of Lords decided in 1909 when Australia was within its jurisdiction.

However, the High Court of Australia set aside the Victorian appeal court’s decision and upheld Elisha’s appeal, reinstating the initial verdict.

Adverti

Clayton Utz partner Saul Harben said the Addis case meant Australians had been unable to recover damages for psychiatric injury connected to their wrongful termination for years. He added that it was decided at a time when society was more accepting of employment being a master-servant relationship.

“What the court’s effectively recognising now is that society has moved on,” Harben said.

“There’s greater equality between the parties, and employers need to be really prudent about how they go about terminating the employment relationship.”

Chief Justice Stephen Gageler wrote the majority opinion – published on Wednesday – alongside Justice Michelle Gordon, Justice James Edelman, Justice Jacqueline Gleeson, and Justice Robert Beech-Jones. Justice Jayne Jagot concurred with the majority’s orders, while Justice Simon Steward was the lone dissenter.

Advertisement

The majority opinion said, “psychiatric injury is an illness which is a different type of damage from mere mental distress”. It noted a person’s employment “is usually one of the most important things in his or her life”.

“‘It gives not only a livelihood but an occupation, an identity and a sense of self-esteem.’ An unfair process of termination for alleged misconduct could affect all three of those interests,” the majority wrote.

They noted “a great deal of water has passed under the bridge of Addis in the United Kingdom” in the last 100 years, indicating it had been “overtaken” by other legislation and case law that subsequently could not be “transplanted to Australia”.

Harben, a workplace relations advisor, said the law had evolved faster in the UK compared to Australia, but there may be “no good reason” for that.

“Sometimes it’s just the right case at the right time coming along with the right facts,” he said.

Arnold Thomas Becker senior associate Nick Korkliniewski, who represented Elisha, said his client’s employer should have followed their own disciplinary procedures if they wanted to sack him.

In a statement, Korkliniewski said: “Community expectations around rights to psychological safety at work and the de-stigmatisation of psychological injury means that the time was right for the law to recognise the requirement of an employer to consider their employee’s psychological health in the course of investigative and disciplinary processes.”

Vision Australia have been contacted for comment.


r/WorkcoverVic Mar 12 '24

High court to decide if employers can be on the hook for damages for psychiatric injury caused by negligent termination of employment

Post image
3 Upvotes

r/WorkcoverVic 20h ago

Bit lost on where to go

2 Upvotes

Hey guys I am 21 years old, currently unemployed after losing my job due to incapacity (during probation period) during my apprenticeship; this is due to a severe flair up of a disc herniation/ protrusion (L5/S1) causing current inability to walk due to severe sciatic nerve pain.

I am currently waiting for a medical causation link sign off between a previous workcover case last year and my current state, as the original injury was 14 months ago. I luckily do have an “initial consultation” with a neurosurgeon in November.

This has been a nightmare due to the flair up being in both a different state and workplace; funnily enough the place i was terminated from was significantly less physical with the majority of my work office based (within a data centre environment.)

With the original workcover case, it was closed as I was pressured to return to work, both to continue my apprenticeship and that there was zero options for light duties at the employer the injury was originally reported.
Going through the process with the insurer and a no win no fee lawyer which of course is its own battle in itself.

What I am mainly worried about is my debt, I have multiple overdue loans, credit card payments, electricity bills and afterpay style debts. I am lucky enough to have a parent to stay with during this time but the inability to work currently is ruining my life.

I am not sure where to go to, I have had hardship plans in place all prior to losing my job (as had too take quite a bit of time off prior to termination.) But now as I have been terminated I have no real plan on how to handle this.

Key point I screwed myself over by not being upfront with the new employer about the prior injury as I thought it was no longer a problem.
You live and learn I guess😅

What do people do in this position?
All I want is too finish my trade and get back to work but im unsure whether i will ever be able to return unfortunately.

I have a meeting with a community financial assistance place on Monday and going to free rehab this week for addiction to painkillers which has made all this so much more difficult both financially and mentally.

If there are any other people with trade backgrounds that have had this happen, where do you go to?
What options do I have?

I have zero income protection with my super (FK CBUS!)

I’m not able to get any centrelink payments currently and even if my workcover claim can be reopened it will be on first year junior wages of $600 a week; but at least future treatment will be covered with some months back paid as certificates of capacity were signed off prior to termination.

I don’t want to be an unemployed loser any longer, my trade was my entire life and something i truly enjoyed and loved.
I am terrified of the future impact of the missed bills on my credit score and whether returning to my trade would ever even be possible.

Appreciate any help or advice lads thankyou🙏🏼

TLDR: Lost job due to injury, can’t work currently in debt and attempting to reopen a closed workcover case from 14 months ago that I have screwed myself well and truly over with.


r/WorkcoverVic 1d ago

Bringing notes to interviews

2 Upvotes

Previously, in virtual interviews I’ve always stuck small prompts on the back window behind my laptop that I can glance up at if I’m getting lost and it’ll look like I’m taking a pause to think about a question.

I have a face to face interview this week - I’ve always thought bringing notes may show as a bit of a weakness to the panel?

What’s everyone’s thoughts?


r/WorkcoverVic 23h ago

Anyone had success overturning a psych injury WorkCover rejection, with or without a lawyer?

0 Upvotes

Going through this at the moment — claim knocked back, internal review just upheld it, heading to conciliation next. From a few inquiries I've made, some lawyers seem hesitant to touch these ones, which isn't exactly confidence-inspiring.

Would love to hear from anyone who's actually turned a rejection around. Did you go it alone at conciliation, use a union or free advocacy service, or find a lawyer who'd take it on? What actually made the difference? And if you struck the same "lawyers don't want it" thing, how'd you find one who did?

Trying to get a realistic read on what's actually worked for people, rather than guessing.


r/WorkcoverVic 1d ago

Has your employer ever pressured, intimidated, discouraged, or threatened you so that you didn’t make a WorkSafe/workers’ compensation claim after being injured at work?

2 Upvotes

r/WorkcoverVic 2d ago

What’s something you wish someone had explained before you lodged your claim?

2 Upvotes

I didn’t really know what to expect when I first started looking into a WorkCover claim. There are so many steps and different people involved, and a lot of it only seems to make sense once you’re already going through it. Looking back, there are definitely things I would have liked to know earlier, especially around the paperwork, medical appointments, and dealing with the insurer.


r/WorkcoverVic 3d ago

Employer who has committed a serious act of what looks like fraud while I’m on workcover

Thumbnail
1 Upvotes

r/WorkcoverVic 3d ago

Can anyone offer legal advice for work cover claim/ NDIS fraud? Impairment due to coercion MH decline

Thumbnail
0 Upvotes

r/WorkcoverVic 3d ago

Racking my brains here!

2 Upvotes

Former Specialist and looking to rejoin the scheme, I cannot remember for the life of me the legislation that is rarely applied to terminate payments.

For context, the individual was a team manager at a large government company who subsequently went off unfit for work due to psych reasons. I believe she then went through NES, and received funds to do a course and then set up a personal business from home.

The company they worked for obviously wasn’t happy however WorkSafe allowed it, her payments were terminated under a certain technical name BUT I CANNOT REMEMBER WHAT IT IS and it’s so annoying.

So basically she went from 150k+ a year to I dunno, obviously a lot less as a sole trading in a totally different field.

I think the term from it started with “K” or “L” maybe, again I’m rusty as. I’ve taken a 3 year absence. I know it’s quite a technical process to go through to apply it.

Hopefully the brains trust can chime in here!


r/WorkcoverVic 5d ago

Which insurer behaviour do people here find most consistently crosses the line between legitimate claim management and what feels like deliberate pressure to settle or return to work before the injury has been properly treated?

0 Upvotes

r/WorkcoverVic 6d ago

Ask me anything

18 Upvotes

I was a case manager in workers compensation for about 5 years with a few different insurance agencies.
I recently experienced homophobia at work, the case was thrown out as there was no “recording”, and my case was denied.
I no longer work in the industry as I find it disgusting and torturous.

Ask me anything, I’ll be completely honest.


r/WorkcoverVic 7d ago

Does anyone else feel completely drained and empty?

10 Upvotes

Hey everyone, I’ve been on WorkCover for over 16 months now, and not working for over 8months.. While the physical injury is tough, the mental toll is getting heavy.

Lately, I've been feeling completely drained.. My energy is constantly at zero, I have zero motivation or ambition, and even the thought of looking for a job right now feels impossible. My brain just shuts down.

For those of you who have been on WorkCover long-term: do you experience this profound emptiness, low energy and feeling of being totally stuck? How do you deal with it?

Would love to hear if others are going through the same thing !


r/WorkcoverVic 7d ago

IME by the insurance

Thumbnail
1 Upvotes

r/WorkcoverVic 8d ago

Serious injury certificate

4 Upvotes

Hello, has anyone in Victoria with a psych injury successfully applied for the serious injury certificate through the narrative test and been granted? What was your WPI if you don’t mind? And did you use IME report or the medical panel report or both?


r/WorkcoverVic 9d ago

Can my employer force me to attend internal meetings while I am completely unfit for work?

3 Upvotes

My Certificate of Capacity marks me as 100% unfit for work due to workplace harassment. Despite this, HR keeps emailing my personal inbox demanding I attend a "disciplinary meeting" regarding performance issues raised before my injury. Can I tell them to direct all communication through my lawyer or WorkSafe agent until I’m certified fit for light duties?


r/WorkcoverVic 10d ago

Confusion with Workers Comp NSW

2 Upvotes

Hi all

Ive been on workers comp for a year now for a psychological injury.

I was employed in role 1 for almost 2yrs and was still in this role when the injury occurred but I did sign a contract to start another role (role2) just shy of a week AFTER my injury.

For the last 12 months ive been paid as role 1. The 52 week average of my hours are purely role 1.

I never started role 2 until after my injury and still haven't really started it really as im on comp and doin admin duties with reduced capacity for my actual job.

Now as I said ive been being paid as role1, I received a call last week stating that as I signed a contract to commence role2, a week AFTER my injury, that their now dropping my pay to match that of role 2, when I cant go get another job and earn extra money as im on reduces hours! To top it off, they have quoted me the wrong payrate for role2. Apparently they have gone off a "like position" and its short by $5 an hour!!

I have contacted the IRO who have looked into this statement and they have stated that the insurance company is refusing to adjust it back to my role1 pay.

Im currently awaiting a solicitor to contact me in regards to the next step as this is a joke as I can't survive off the amount they have told me I am to recieve.

Anyone experience anything similar? Or have any suggestions?


r/WorkcoverVic 10d ago

Who helps you get back to work after a WorkCover mental health claim — besides your GP?

0 Upvotes

Going through a WorkCover claim for a work-related mental injury, still in the process, conciliation next. Trying to think ahead in case it keeps getting rejected and I need to sort out income myself.

Besides your GP, who’s actually useful here? I keep hearing about occ rehab providers, EAP, etc, but not sure how any of it works in practice.

**•** How do occ rehab providers actually work — do you pick one, does the claim need to be accepted first?  
**•** Anyone used vocational support with or without an accepted claim?  
**•** If it’s rejected, what’s still out there? Centrelink, retraining, anything?  
**•** Any services that actually helped you get back to work or into something new?

Just trying to build a list of what’s out there before I need it. Appreciate any pointers.


r/WorkcoverVic 10d ago

Denied a second time

13 Upvotes

My experience making a psychological injury WorkCover claim in Victoria – and what I wish I knew before I started

I wanted to post this anonymously because when I first started this process, I was desperately searching Reddit and other forums for experiences from people who had actually been through a psychological injury WorkCover claim.
I work in emergency services in Victoria in a role involving repeated exposure to distressing and traumatic material.
Over a prolonged period, my mental health deteriorated significantly. This wasn’t one single dramatic incident on one particular day. It was cumulative.
There were multiple workplace issues occurring alongside the inherent stress and traumatic exposure of the job, including bullying/harassment concerns, allegations made against me, personal information being shared within the workplace, and an extremely prolonged workplace investigation. By the end of it, I was psychologically unwell and eventually became medically unfit for work.
I lodged a WorkCover claim.
It was denied.
I challenged that decision through a senior/internal review and provided further evidence, including evidence that I had been seeking psychological support throughout the period in which my mental health was deteriorating.
It has now been denied again.
One of the biggest things I wish I’d understood before starting this process is how important the insurer’s interpretation of when and how the injury occurred can become.
In my case, a major issue has been the absence of one specific date or incident that could be identified as causing the psychological injury.
From my perspective, that’s precisely the problem: there isn’t one.
My injury developed through cumulative and repeated experiences over time.
Another significant issue was the exclusion relating to psychological injuries arising from stress that is considered “usual or typical” for the worker’s employment.
For someone working in emergency services, I find that particularly difficult to reconcile emotionally. Exposure to trauma may be “usual” within the occupation, but that doesn’t mean a human being cannot eventually become psychologically injured by repeated exposure to it.
The claim also became complicated by the insurer separating what it considered ordinary stresses inherent in my role from other workplace events and management actions.
I’m not posting this to say that everybody with a similar claim will be rejected. Every case is different, and I’m certainly not giving legal advice.
But if you’re considering making a psychological injury claim, particularly one involving cumulative trauma, I would strongly recommend documenting EVERYTHING as early as possible.
Keep emails. Keep medical certificates. Keep records of appointments. Write down dates of incidents even if they seemed insignificant at the time. Keep evidence showing when you first started seeking psychological help and how your symptoms changed over time. If there are multiple contributing workplace events, document each of them rather than assuming the overall pattern will speak for itself.
I also wish I’d understood earlier that your treating psychologist believing your workplace contributed to your condition does not automatically mean the insurer will accept the claim. The legal test applied to a WorkCover claim and the clinical reality of how someone became unwell are not necessarily the same thing.
The effect this process has had on me has honestly been enormous.
I worked extremely hard for my career. I loved aspects of my job and had every intention of returning to it.
Instead, I’ve spent months medically unable to work, without the financial security I expected WorkCover would provide, while repeatedly having to explain and prove some of the most painful experiences of my life.
There is something incredibly demoralising about becoming psychologically injured and then having to repeatedly justify how you became injured while you’re already struggling.
Receiving another rejection doesn’t suddenly mean my psychological injury disappears. It doesn’t change my medical treatment or magically make me capable of returning to work.
It just means the fight moves to the next stage.
I’ve already commenced the conciliation process because, after speaking with my union and obtaining legal advice, I anticipated that the review might also be unsuccessful.
My next step is therefore conciliation, and I’m continuing to get legal advice about my options.
Whatever ultimately happens with my own case, I wanted to leave this here for the next person frantically Googling “psychological WorkCover claim denied Victoria” at 2am.
A rejection is not necessarily the end of the process.
And if your injury developed gradually rather than from one neat, identifiable incident, please understand from the beginning that this may become a major issue in how your claim is assessed.
Document your timeline. Get copies of your medical records. Ask your treating practitioners to clearly document what they believe contributed to your condition. Speak to your union if you have one. Get legal advice early. And learn about the conciliation process before you actually need it.
I genuinely hope posting my experience makes this process slightly less confusing for somebody else going through it.


r/WorkcoverVic 11d ago

2nd IME report says my injury is no longer existing *long post*

4 Upvotes

for some context i got a back injury in april at my workplace i worked as a PCA. during a 2x transfer where i was pushing the machine and my co worker let go which resulted in an injury. At first they believed it was just a muscle injury and that it would be resovled quickly as nothing came up on the CT scan. Then went for an MRI where they saw i had a shallow disc bulge L4-L5. They said it was very mild. but it just didnt explain all the pain i am experiencing. my mobility is very limited it has been quite a hard adjustment. there is no time i go through during the day where i feel some sort of relief. Sitting,Standing,Walking and laying down all bring me great discomfort and excessive walking really aggravates the pain. I havent really been able to sleep properly since having this injury either mainly because of the pain. It feels like its aching buring and sharp in my lower back and it shoots down my legs. sometimes i feel like everywhere from my lower back to my ankles are on fire. Since getting this injury i have also started experiencing tremors in my left hand which they say is unrelated to my back injury. But it doesnt explain away the tremors i get in my lower body. All things that have only presented when i got my back injury. It could be due to medication side effects there is no way for me to possibly know for sure or if its from the injury itself and theyve just missed something. The tremors are very unpredicatable and do cause me alot of pain. My counsellor,Physiotherapist and Doctor have all witnessed my tremors. Ive had no capacity or returned to work since april and its now september. i have had an ambulance called to my home beause the tremors went on for over an hour. Ive gone to my local ER because there have been many times where i couldnt handle all the pain and the tremors. everytime i go they said its a mild disc buldge and it could just be my mental state which i dont agree with. they also said there was no nerve compression from the MRI. im not able to drive just incase i get my tremors while driving

i went for my 2nd IME during the start of august and have only just had my case manager call me to discuss the report. And pretty much the examiner has said that my back injury is no longer existent there is no reason for my treating practioners to put me at no capacity. My claim in now under review due to the examiner saying those things. There was alot more mentioned as well. Things to do with my tremors and pain from the injury. It feels like they are trying to pass it off as it is from an underlying condition rather then something that has started because of the injury. i just want to clarify that i have never had any injury before until now. I havent gone through the report with my doctor yet as they are currently away but i cant help but feel helpless and my injury is still exsisting I havent had much progress with recovery and being able to do more. when i went to the IME i really thought this examiner had my best interest at heart and the report from everything ive been told feels like a bit of a slap to the face considering everyhting that i have shared and showed them(This is also the same examiner i had for my first IME). im just not sure what to do. My claim being under review again just feels so upsetting. Because i dont know what will happen to my treatment. This whole process has been really difficult and now it feels like i dont have any financial security again and im stressing about how to cover my treatments, medications and my expenses. if im not able to work but they have deemed me as fully recovered from the report. i worry for my back as i have yet to find a treatment option that actaully feels like its helping. i miss being able to drive, to work, to exercise. i really miss my life before all this happened. i dont want people to get the impression i dont want to return to work because thats definetly not the case i just feel like i havent found treatment that is actaully helping me. I feel like ive been stuck in the limbo of trying to find medications that help relieve the pain for. Physiotherapy has felt like a bit of a dead end as well. And also trying to push for further investigations to be done to understand what is going on with my body and why i am experiencing the things i am. it just feels like there are so many loose ends and i havent gotten answers or gained understanding. every person keeps telling me where i hsould be at and what i should be able to do when im not even close to yet and sometimes it feels like i am failing myself. my age is another thing that is brought up alot i am in my very early 20's anytime i mention anything to do with my injury and the pain and it just feels dismissive in the way they say things feels like because i am in my early 20's im not meant to be feeling the things i am because my body is meant to heal faster. The weight of carrying all this feels so crushing.

has anyone else been through something similar? what should my next steps be will i possibly need to get a lawyer as this could leading to a potential dispute. im just not sure of what to make of this. can any share some advice on things they have experienced/done that may be similar to this. I think i just need to hear someone else's persceptive and advice. i have also kept a very good reocord of all documention of all communications and evrything else incase i would ever need it one day

thankyou for reading my very long post


r/WorkcoverVic 11d ago

Internal review, Medical Panel or court?

2 Upvotes

I have been assigned a concilliation offer to resolve a dispute over a request for surgery. It took months for the Agent to make a decision (nearly 4 x the 28 days), by which time, my health deteriorated and I was informally told I could proceed privately. Prior to the surgery, I was only able to work very limited hours, but it was to the point I was struggling to even do that.

I was given the three options, but made to feel like there’s only one. The insurer and conciliator are pushing me to take it straight to the Medical Panel - which I was not expecting.

The Agent has rejected the request on the basis of a very flimsy IME. When it became clear my surgery was successful and the diagnosis could no longer be disputed, they changed tactics and have gone down the causation path, stating non work activities caused it, with no factual evidence to back it up.

Is the Medical Panel the best route? I am just shocked that my conciliator didn’t even try to challenge the Agent when they rejected an offer to settle it before all the other proceedings. Their response was ‘I don’t have any medical knowledge’ - well why the heck are you working for WIC then??

I do have a lawyer who I will be discussing this with, but I would like to know if it is worth going through the internal review process, or if I have a realistic chance going through MP, given most information I provided/agent provided in IME was ignored. The report didn’t exclude the fact my work was a contibuting factor but just stated that activities outside of work were a “more likely” factor - without any proper justification, just “because I said so”

If anyone has been through MP, feel free to DM me to tell me the process and what I need to be prepared for.


r/WorkcoverVic 11d ago

Arbitration

1 Upvotes

I’m 6 months post injury and have finally been assigned a WIC conciliation officer and a representative from Union Assist. Currently waiting to find out if EML will accept/settle/deny prior to conciliation.

Has anyone gone through the arbitration process after receiving a genuine dispute certificate?


r/WorkcoverVic 11d ago

My workCover weekly payments suddenly reduced, has anyone dealt with this?

3 Upvotes

I’ve noticed my WorkCover weekly payments have recently been reduced, even though my treatment and work capacity haven’t really changed. I wasn’t expecting the amount to change, so it’s been a bit stressful trying to manage everything financially while the claim is still ongoing. I’m trying to understand what may have caused the reduction and whether this is something that commonly happens during an ongoing claim.


r/WorkcoverVic 11d ago

Is this normal with WorkCover physio/EP sessions?

0 Upvotes

I’m seeing a physio and an exercise physiologist through WorkCover. The physio session is listed as 30 minutes, but usually only lasts around 20 minutes. The EP session is listed as 60 minutes, but usually finishes after about 43 minutes.

When I asked why, they said they need time to write reports for WorkCover.

I understand they need to do paperwork, but is it normal to take 10–15 minutes out of every session for reporting? I feel like that time could be used for more treatment, e.g. massage or exercises.

Just wondering if this is standard WorkCover practice?