In many jurisdictions, legislation makes worker's compensation provisions for people who suffer psychological injuries as a result of their employment. Stress, traumatic events, workloads, harassment, pre-existing mental disorders or a whole range of other possible factors may give rise to a compensable psychological injury.
Interestingly, psychological injuries may be a sequela (i.e. consequence of) of physical injuries which result in time off work. Over an extended period, the injured worker may come to feel isolated and disenfranchised by the workplace, especially if the injury management process is not effectively designed and implemented. There are also instances where it appears that physical injuries provide an "escape hatch" from the pressures of the job and as the worker experiences relief from being away from the workplace there is a growing resistance to return to work. Under these circumstances, psychological factors may be cited as a reason to delay a return to work.
Responses to any compensable injury resulting in time off work must be timely, effective and actively engage the worker in a planned return to work. Workers are entitled to assurance that the risk of a recurrence or worsening of their injury is addressed appropriately, whether the injury is physical or psychological.
Claims Management - A Tool or a Weapon?
The irony, in many jurisdictions, is that injury management practices often focus on verification of the worker's compensation claim. Verification of the injury, diagnoses, treatments and the worker capacity to undertake pre-injury or alternative duties. Combined with a "process" mentality amongst many injury management personnel it is not hard to see why worker's compensation claims provide fertile ground for adversarial negotiations.
Many injured workers report feelings of being disbelieved and isolated by the legal and administrative processes around their claims. Of course, claims managers quickly point out endless examples of worker's compensation provisions being shamelessly exploited. Both sides of the process continue to feel justified in their antagonism to the other.
These dynamics are tricky enough in the context of physical injuries. However, with regard to psychological injuries, the treatment is potentially worse than the illness. Many of the factors leading to psychological injury have disregard for the worker, harassment, workload pressures, being undervalued or stress at the root. An adversarial approach to a worker with a psychological injury potentially adds to the worker's incapacity at a time when their emotional and mental reserves are at an all time low.
Managing Claims Proactively
Far better for the organisational approach to be based on the premise of "we are here to help you get well". Of course, the employer has to comply with relevant legislative and regulatory requirements and this does mean that verification activity needs to occur. However, the critical element is about attitude. A positive and proactive response from injury management staff is far more likely to engage the worker in a willing return to work. Such an approach also gives the worker the opportunity to contribute to an identification of barriers that need to be addressed in a "no-blame" context. Both employees and employers have accountabilities in terms of worker's compensation, but accountability should not be synonymous with mistrust.
Psychiatric and/or psychological assessments are notoriously difficult to obtain, resulting in delays of weeks or months before the injury is verified or disconfirmed. During this period, the opportunities to turn a moderate injury into a severe one are limitless! Many organisations are now using a process known as "closed period determinations" for claims that have a long lag time to diagnoses or are potentially complex. A closed period determination essentially says "you have reported a [psychological] injury. Whilst we undertake the assessment process we accept your claim for a period of [X weeks/months] until a professional assessment can be provided to the employer".
The closed period determination assists in reducing the potential for exacerbating the injury and the distrust and isolation associated with the more usual adversarial approach. Critics argue that:
· the employer makes themselves liable for costs that may turn out to be costs for which they should not have been liable, and
· that it is an abdication of legislative responsibility to ensure the claim is valid.
Let's look at both those arguments in turn.
The Cost of Accepting Unproven Liability
Injury prevention and injury management is about the management of risk. Any process that helps to maintain goodwill between the employer and employee creates opportunity to limit time off work and long-term psychological injury costs (i.e. reduces risk to the employer). Per injury, psychological injuries are by far the most expensive. Adversarial proceedings force both parties into defensive positions, from which any gains are small, incremental and notoriously slow. This adds up to significant long term salary burdens (i.e. significantly increased risk). The very few psychological injuries that are unsupported as a result of a professional assessment (and injured workers usually get to choose their health provider) would be miniscule by comparison. It should also be noted that in many countries, industrial courts operate in such a way, that it is incumbent on the employer to disprove the validity of a claim, rather than the employee proving their case.
Legislative Requirements to Assess Claims
Clearly there is a broad range of legislation across different jurisdictions and this article cannot presume to adequately address all variations. However, most legislation makes provisions for accepted or rejected claims on the basis of available evidence (including the worker's report of the injury). A closed period acceptance allows for the further gathering of sound evidence to support a final determination, consistent with much legislation around the world. When the professional assessment is made, the final determination will include consideration of this assessment. Injury management practitioners often fear that closed period determinations set a precedent that will prove a stumbling block in any future legal action. However, I again make the point that industrial courts very often place the onus on employers to disprove a claim, regardless of the initial determination.
When Not to Use Closed Period Determinations
Legislation will often prescribe circumstances in which psychological injury claims will not be accepted. An example of such circumstances might be where the employee is facing a disciplinary process prior to lodging a claim, or where the claim arises from "reasonable management action" (e.g. such as giving a legitimate direction to undertake work or undertake work in a particular manner). Under these circumstances it would be unwise to make a closed period determination in favour of the employee. Particularly in the context of disciplinary action, a closed period determination undermines the employer's ability to deal with the identified work related issues.
"Reasonable management action" is open to some interpretation. An employer's definition may be quite different to that of an industrial court. This is why effective injury prevention and consultative strategies are critical to the health of an organisation. Any significant actions by management that have not been effectively consulted, or are inconsistent with industry standards/practice, place the organisation at high risk of being held liable for consequent psychological injury. However, where the organisation believes it can support the position that management action was reasonable and the psychological claim is unjustified, it would be imprudent to make a closed period determination in favour of the employee.
Having said this, the many claims that arise from harassment, intimidation, workload issues, conflict with colleagues or management, traumatic events etc are claims where the organisation may benefit from a closed period determination.
In Summary
This article addresses ways of managing psychological injury claims that reduces risk to both employees and employers. Health and financial risks are often created by distrust, adversarial negotiations and the effective isolation of employees pursuing a claim. When psychological injury occurs, injury management personnel need to respond in a timely and proactive manner, with a view to the quickest and safest return to work for the employee. However, remember that managing injury is an "after the fact" process. Organisations should ensure effective preventative strategies are embedded as a first priority.