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