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The horrific double standard in SA's workers' compensation laws

Opinion

South Australia’s workers’ compensation regime has entrenched discrimination against people suffering from a mental illness, writes Amber Sprague.

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Society today recognises, accepts and tries to assist those suffering from mental illness more than ever before. Everywhere we turn there are organisations whose sole purpose is to provide information, support and guidance to those suffering from mental illness, to employers, to schools and health professionals. There is encouragement from many different people and organisations to speak up and to not be afraid to ask for help if you are suffering.

We have seen firsthand over the past couple of weeks that mental illness does not discriminate in who it infects: mothers, fathers, teachers, nurses, first responders, TV celebrities, designers, just to name a few. Regardless of the formal diagnosis (depression, stress, anxiety, adjustment disorder, etc) it can be a debilitating illness which affects every aspect of a person’s life, and those around them.

We are intolerant of, and prepared to stand up against, bullying, harassment in all its forms and other behaviours which contribute to the development of mental illness within society.

As a lawyer specialising in workers compensation claims, I have seen literally hundreds of workers affected by mental illness due to a wide range of causes. Some have had pre-existing psychological illnesses due to childhood trauma which manifested into work-aggravated mental health issues. Some have had grief, domestic violence and marital breakdown issues compounding their work problems, while others become unwell simply due to treatment that they have experienced from others within the workplace. Some are affected by other work causes such as excessive workloads, unreasonable administrative actions, assaults and the like.

Sadly, I continue to hear stories of employers who treat their employees unfairly and unreasonably or who do not respond appropriately when dealing with issues that arise in the workplace. Work-caused or contributed mental illness accounts for a significant proportion of mental illness within society and that can have a devastating effect on all of us.

The Return to Work Act took the discrimination of psychologically injured workers into a whole new realm…

If a psychological injury in South Australia is caused by or contributed to by employment, then a workers compensation claim through the Return to Work Act 2014 can be submitted. However, a psychological injury claim in this state is dealt with very differently to a physical injury claim. In my opinion, this remains one of the biggest flaws in our workers’ compensation system. Not only is there a tougher test for compensability for psychological injuries, there is a significant discrepancy between the entitlements paid on each accepted claim.

For example, a 40-year-old full-time worker with a 10 per cent whole person impairment for a knee injury sustained at work receives as part of their workers’ compensation claim:

This is in stark comparison to the treatment of a 40-year-old full-time worker with a 10 per cent whole person impairment for a psychological injury sustained at work. They will receive:

After that, they are cut off the workers’ compensation system, with no future treatment paid and no lump sums paid. If they require any future treatment then it will be at their own cost, possibly via Medicare or private health insurance, if they are lucky enough to be able to afford it. If they have been unable to return to work, which is quite possible as a 10 per cent impairment is quite severe under the GEPIC assessment scheme, then income protection and/or Centrelink and/or leave entitlements are the only options for ongoing weekly income.

In South Australia, unless an assessment of whole person impairment is 30 per cent or greater for physical or psychological injuries, then weekly payments and medical expenses are cut off after the nominated timeframes, but the physically injured get monetary compensation to acknowledge the permanency and the severity of their injury, and the psychologically injured do not. They get nothing further.

The Return to Work Act also changed the goal posts for a psychologically injured worker to even have a claim. The test now for an injury to be compensable is different and tougher for those with psychological injuries. Whereas a worker suffering from a physical injury only needs to prove that employment was ‘a significant contributing cause’ of the injury, a worker suffering psychologically needs to prove that their employment was ‘the significant contributing cause’ of the injury.

In reality, the effect of this distinction is that those with physical injuries are much more likely to have their claims accepted as the causal link with employment is easier to prove. Yet again a psychologically injured worker faces clear discrimination, unnecessarily and unjustifiably, given the tests used to be the same under prior legislation.

And so I continually ask when faced with this scenario: how can we, on the one hand, profess to be more accepting of mental illness, yet we allow our government to treat psychologically injured workers in such a discriminatory manner? How can we allow this to happen if we honestly believe that those suffering from mental illness should be assisted unconditionally to recover? Why is someone’s injury worth more money just because you can see it? Is it not bad enough that someone suffering from a psychological injury potentially has to face discrimination because they have an illness per se, without adding further to the discrimination because of the type of injury?

Politicians from both sides of the fence need to work together to fix this problem

Psychological injuries have never been treated in the same manner as physical injuries and it is time they were. Under previous workers compensation legislation, psychologically injured workers were not so significantly discriminated against, given that that legislation provided at least for ongoing weekly payments and ongoing payment of medical expenses. The Return to Work Act took the discrimination of psychologically injured workers into a whole new realm given the lump sum that it provides for physically injured workers and not psychologically injured workers.

John Mansfield has recently completed an independent review of the Return to Work Act. Some 49 submissions were received, many of which dealt with issues surrounding psychological injury claims, their compensability and the inherent unfairness in the manner in which psychologically injured workers are dealt. The outcome of the review is eagerly awaited, but remains to be seen what recommendations will be made and then what will actually be implemented.

Politicians from both sides of the fence created this issue when both major parties voted to implement the Return to Work Act 2014. Politicians from both sides of the fence need to work together to fix this problem and to ensure that psychologically injured workers are treated with the proper respect and dignity that they deserve.

There are many other concerns with the legislation as it stands and plenty of scope for change which may arise from the Mansfield review. However, in my opinion, there is none quite so important as this clear double standard applied to psychologically injured workers.

If we really want to be helping those who suffer from mental illness then a proper and urgent first step is to treat them in the same way as we treat those with physical injuries and therefore provide them with the same level of entitlement.

What is the point of asking anyone ‘R U OK?’ when we know they are not being treated fairly?

Amber Sprague is a partner at Tindall Gask Bentley Lawyers in Adelaide.

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