First and foremost, first aid needs to be provided as matter of urgency by a qualified First Aid Officer
and if required, an ambulance called to provide further medical assistance and assessment of the
injury.

If the injury has resulted in any time loss (no matter how minimal) or the requirement for medical
review or treatment, the injury is required by law, to be reported to your workers compensation
insurer within 5 working days of you being notified of the injury. SIRA and iCare, however encourage
you to report within 48 hours where possible. This notification can be made to you in several forms
including completion of the Injury Register, a verbal notification, an email or a text message for
example. Therefore it is important to ensure that all employees, managers and supervisors are aware
of the reporting requirements for your workplace and follow these wherever possible.

If an injury is reported outside of the above timeframes, an excess is then payable on the claim. This
excess is the equivalent of one weeks’ worth of the injured employee’s wages.

Injury reporting is quite simple and can be done via your Workers Compensation insurer’s website or
by downloading the form, completing it and either emailing or faxing it back to them. At this point,
you will also be provided with a “Notification Number” or “Claim Number” which is specific to that
employee’s claim.

If you have concerns regarding the injury or how the injury occurred, it is best to raise these as quickly
as possible and have as much detail as possible available when reporting. If you do have concerns
regarding a injured worker’s claim, please feel free to contact Key Workplace Solutions at any time to
discuss this in more detail.

If the injury is considered to be “notifiable”, you are also obligated to inform Safe Work NSW. A
“Notifiable Incident” is:

• A death in the workplace
• A serious injury or illness
• Dangerous incident

At no point in time, should an injured employee be in the workplace without a valid WorkCover
Certificate of Capacity (WCCOC) which they obtain from their General Practitioner at regular intervals.
The WCCOC will stipulate the following information:

• The injured employee’s details – ie name, address, date of birth etc
• The injured person’s consent – this should be signed on the initial certificate and all further
certificates where possible.
• The Medical Certification – including the diagnosis, date of injury, mechanism of injury and
management plan.
• Their Capacity for Activities – including sitting, standing, lifting and driving and their next
review date.
• Their Capacity for Work – this will stipulate whether they are fit for Pre-Injury Duties, Suitable
duties (duties with restrictions in place depending on the injury) or unfit/ non capacity with
dates.
• The Treating Doctor details including confirmation that they agree to be the Nominated
Treating Doctor.
• The employee declaration confirming whether they have participated in any form of work
(paid or voluntary) whilst on a workers compensation claim.

You will also be required to complete a Pre-Injury Average Weekly Earnings (PIAWE) form for the
injured employee if there has been any time loss to calculate their earning entitlement throughout
the life of the claim.

As an employer in NSW, you are required wherever possible to offer and accommodate suitable duties
for the injured employee to complete whilst recovering from their injury in the workplace. Often
these duties are parts of the employee’s pre-injury duties and requirements and dictated to by the
WCCOC and the restrictions noted on it.

The duties must be meaningful and useful to the business and cannot be considered to be demeaning
in any way. For example, requesting an injured employee staple sheets of paper together with no
actual reason or purpose would not be considered meaningful or useful to the business and could also
be argued to be demeaning.

Based on the suitable duties, you will be required to complete a Return to Work Plan for the injured
worker outlining these duties. The Plan needs to be amended an updated whenever you obtain a
revised WCCOC and until the worker has obtained a Pre-Injury Duties Certificate.

If you would like any support in identifying suitable duties or completing a Return to Work Plan, please
feel free to contact Key Workplace Solutions for ongoing assistance.

You will also be required to be available to discuss the injured employee’s recovery and claim with all
relevant parties ie. The Case Manager at your workers compensation insurer, the Treating Doctor, the
Treatment Providers or a Rehabilitation Provider.

An employer in NSW is unable to terminate an injured worker’s employment within six (6) months
from the date of injury if it is related to their workplace injury and return to work.

** Please note that the information contained within this article is brief and does not include all
obligations for an employer in NSW under the relevant Workers Compensation and Injury
Management Acts or obligations under Safe Work NSW and the relevant legislation and regulations.
**

There is an increasing number of psychiatric claims being lodged by employees within NSW. Some of this can be attributed to COVID-19 and the associated pressures of potential exposure or having to work from home and the social isolation.

However, in our experience, the majority of claims are coming from two main catalysts

1. Performance Management or perceived performance management and

2. Interpersonal conflict.

Whist Section 11A of the Workers Compensation Act 1987 has very clear guidelines in relation to what is considered “reasonable actions of the employer”, there is still a grey area as to what is actually considered reasonable.

This coupled with the “egg shell psyche” and employee perception means that most often then not, employers are not able to provide enough supporting documentation to make a soundly based Section 11A argument.

A psychological injury is defined in the NSW Workers Compensation Act 1987 as “an injury that is a psychological or psychiatric disorder”. Section 11A of the Workers Compensation Act 1987 states the following; “11A No compensation for psychological injury caused by reasonable actions of employer (1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.

(3) A “psychological injury” is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system. (4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system. (6) This section does not extend the definition of “injury” in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment. This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).

(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of

describing the worker’s condition, accepted medical terminology and not only terminology such as “stress” or “stress condition”. (8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)—

(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and

(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”

The “egg shell psyche” as mentioned above, essentially means that you take an employee as you find them. This creates further barriers in managing psychiatric injuries as no two people have the same psychiatric make up and what is appropriate for one person psychologically may be the polar opposite in another individual.

Whilst performance management or perceived performance management is one catalyst. This can be managed quite well through the use of, and abiding by the company policies and procedures in relation to performance management (formal or informal).

At the very least, we recommend that any performance management is put in writing and that you follow Fair Work guidelines and involve your Human Resources Department.

Interpersonal conflict is the other main catalyst that we are seeing at present and this is, in our opinion, much harder to apply a Section 11A argument to. Whilst there may be elements of performance management such as a new Team Leader being appointed and streamlining a team member’s work requirements or work load, which would be considered reasonable action by an employer, it more often than not is two co-workers (or more) who are for whatever reason unable to maintain a professional working relationship.

The above can lead to not only lodgement of workers compensation claims, but also have a huge impact on the culture within the workplace. We recommend that any interpersonal conflict is addressed as soon as you are made aware of it and the appropriate steps are put in place to minimise or cease this moving forward some examples maybe – moving the staff member to another location in the office, having them report to an alternate manager and if your policies and procedures offer it, mediation or offering Employee Assistance Program (EAP).

It is also important to note that a psychiatric injury is considered a disease process under the NSW Workers Compensation Act 1987 and NSW Injury Management Act 1998. This means that employment is required to be the main contributing factor to the workplace injury, not a significant contributing factor as you would find with most physical injuries.

There are several resources available to employers in NSW and some links have been included below for your review and reference.

https://www.icare.nsw.gov.au/employers/industry-and-partners/industry-hub/need-to-make-a-claim/psychological-injury-at-work

https://www.icare.nsw.gov.au/employers/industry-and-partners/industry-hub/preventing-injury/supporting-mental-health-at-work

As always, if you are experiencing a psychological claim in your workplace or expect that one may be lodged, Key Workplace Solutions is available to assist you with the management of the claim including providing guidance and support.

Key Workplace Solutions are able to offer our tailored services and support in New South Wales, Victoria and Queensland. More specifically, our services are available throughout New South Wales (Sydney, Parramatta, Macquarie Park, Moore Park, Norwest etc) Queensland (Brisbane, Sunshine Coast, Ipswich, Tweed Heads etc ) and Victoria (Melbourne, Docklands, St Kilda, Gippsland, Bendigo etc)

** Please note that the information contained within this article is brief and does not include all obligations for an employer in NSW under the relevant Workers Compensation and Injury Management Acts or obligations under Safe Work NSW and the relevant legislation and regulations. **