How decisions are made
When your case manager has all the available information before them, they may be ready to make a formal liability decision.
On this page
Decisions based on Section 11A
What if I don't agree with the decision?
Gathering information
Your case manager is responsible for gathering information that will assist with making a soundly based liability decision on your claim. Most commonly, the type of information they'll need will include:
Information about you
This includes your full name, date of birth, address and contact details. They'll also need information about your employer, your job, the duties you perform at work, and your earnings information if you have lost time from work.
This information helps make sure case managers have the right person and to understand the injury you've suffered. It's also important for them to understand more about what you do for work for when the time comes to go back to work.
Information about how the injury happened
This includes how, when and where the injury happened, who was there, who said what to whom and who did what. Sometimes this involves a factual investigation that will include you, your employer and some of your colleagues giving a statement, because many mental health injuries in the workplace start with interpersonal conflict or bullying and harassment.
Information about your injury
In order to make sure you get the most appropriate treatment, your case manager needs to know what your injury is. First of all, they'll ask your doctor. They might speak to your psychologist. They may ask for clinical notes. If things are still unclear, they may ask you to undergo an examination by an independent doctor.
They will also ask for details about how much time you have lost, or will lose, from work as a result of your injury. This information will influence the liability decision made (for example, whether they accept the claim as provisional liability with weekly benefits, or provisional liability, medical expenses only).
Learn more on our Sharing of information page
Making a decision
When they have all the available information before them, your case manager may be ready to make a formal liability decision.
The legislation (law) that enables workers compensation in NSW sets out a number of requirements that your case manager must consider as they go about making a decision on your claim:
Worker
Your case manager needs to have information that shows you are a worker.
Injury
You must have an injury that "arose out of or in the course of your employment". Because many mental health injuries occur as a result of events that take place over a period of time, your case manager also needs to understand if your employment was the main contributing factor to the occurrence of the injury and/or the aggravation, exacerbation, acceleration or deterioration of a condition you already have.
Most psychological injuries are disease injuries and can arise out of the course of employment (for example, bullying and harassment) or from a specific incident (for example, armed hold up) that may result in the development of a new psychological injury with no previous history.
In the alternative, there may be a history of psychological injuries, but employment has caused aggravation, acceleration, exacerbation or deterioration of the pre-existing condition. Either way, employment must be the main contributing factor to contracting psychological condition if it is considered a disease.
The test on psychological injuries typically extends to having employment being the main contributing factor as opposed to being a substantial contributing factor. The latter being the test if the psychological condition is not considered as a disease.
Causation, special decision types
There is a rarer decision type that applies if your injury was "wholly or predominantly caused" by the reasonable actions taken (or proposed to be taken) by your employer with regard to seven specific employment actions, including performance management. This type of decision will lead to a denial of liability based on Section 11A of the Workers Compensation Act 1987. See below for more information on Section 11A.
Decisions based on Section 11A
This is a type of decision that occurs only for mental health injuries that arise as the result of an employer's actions regarding seven very specific things; transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
Because these things are regarded as core activities of an employer's business, things they might reasonably be expected to do as they carry out their business, the legislation provides a defence for employers who conduct these activities (or propose to conduct these activities) in a reasonable manner.
For injured workers, this decision can be difficult to understand because in order for this defence under section 11A to operate, there must be an injury. For this reason, when a decision of this type is made the burden of proof with regard to the reasonableness of the actions undertaken falls on the employer.
Also, if there were other things that happened in the workplace that mainly caused or mainly contributed to an injury, in addition to any of the seven specific activities listed in the legislation, then this defence becomes unavailable.
What if I don't agree with the decision?
While the majority of mental health claims go on to be accepted, for a variety of reasons there'll always be some that are declined. If that happens to you, you'll no doubt want to understand why and what can be done about it.
In the first instance, your case manager will be the one to explain the decision to you. They'll talk about the evidence they considered and the relevant pieces of legislation (law) that they referred to as they made the decision. Your case manager will also send you a written notice confirming the decision.
For some, understanding how the decision was made and hearing it explained is enough. Others will want to check to make sure the decision was the right one.
If you think the liability decision made on your claim is incorrect, you're entitled to have it reviewed by someone independent from the first decision-maker. There are two different ways to do this, you can choose either, or both:
Internal Review
You can request that the claims service provider completes an internal review of the decision. This will be done by a suitably-qualified individual who was not involved in the initial decision-making process. The reviewer will acknowledge your request, provide you with an overview of the review process and offer you the opportunity to provide any additional information you would like to be considered.
Once your claims service provider (CSP) receives your request for a review, an outcome will be delivered in 14 days.
External Review
You can apply to have your decision reviewed in the Personal Injury Commission, via an Application to Resolve a Dispute. If you do, it's helpful to have a lawyer assist you with this process. Funding for your legal provider is available via the Independent Review Office.
