Claims for workplace psychological injuries in NSW are climbing 15 times faster than physical injuries, helping prompt the release of a draft code of practice to tackle the trend.
More than 1.2 million days were lost due work-related psychological injuries in 2018-19 in New South Wales alone. In the same period, psychological injury claims increased by a whopping 53 per cent compared to 2014-15, while the claims for physical injuries only increased by 3.5 per cent. On an average, workers were off work for around 175 days if they experienced a psychological injury, this is around four times longer when compared to a physical injury.
Despite this growing rate of claims, research finds one in five NSW businesses only have a basic awareness of psychological risks in the workplace.
To address this, NSW recently released a draft Psychological Health Code of Practice. The release follows a national Review of the model WHS (work health and safety) laws: Final report from December 2018, which found that psychological health is not addressed adequately in the current regulatory framework, and noted more specific reference is required in the framework, including a code of practice, says a SafeWork NSW spokesperson.
What is driving this increase in claims?
Historically, psychosocial hazards are viewed less seriously and more difficult to enforce the management of, than physical hazards, says the SafeWork NSW spokesperson.
“But from 2014-15 to 2018-19 there were over 26,600 people who experienced work-related psychological injuries to the point that they needed to take time off work to recover,” they say.
“Industries are working in completely different ways over recent years and we are increasingly aware of the effects of the workplace environment and atmosphere. Around 77 percent of accepted workers’ compensation claims for psychological injuries are attributed to a mix of work-related harassment, or workplace bullying, excessive work pressure, or exposure to occupational violence or a traumatic event.”
Jeremy Kennedy, Special Counsel at business and litigation firm Roberts Legal, attributes the increase to a more common acceptance of mental health issues in society and the many programs and initiatives, such as R U OK?Day and Beyond Blue, to battle this medical issue.
“Also, high-profile people such as sportspersons and other leaders are prepared to talk about their own experiences etc which has overall reduced the stigma of mental health issues,” he says.
This has translated into more psychological injury claims, he says noting that the regulators have also strengthened focus on this issue.
“Workers are for more aware of their rights in regard to these issues and one major consequence of workplace bullying is of course mental health related injuries,” he says.
But it is not just greater awareness that is driving the increase in cases and claims. Constant connectivity, technological changes, expectations around faster turnaround time, feeling of losing control, isolation and job insecurity are some of the other psychological risk factors that could contribute to mental ill-health in the workplace, according to Fay Calderone, employment lawyer and partner at Hall & Willcox.
NSW industries that typically offer workers poor job control and low job security – such as manufacturing, retail, accommodation, food services and administrative services including clerical or cleaning businesses – have some of the highest numbers of cases of mental ill-health, according to SafeWork NSW.
Identifying psychological hazards
Physical hazards can be seen and identified but the trouble with psychological hazards is they are nebulous, and we are all wired differently, says Calderone. Although a psychological injury is a workplace health and safety consequence, HR professionals play a pivotal role in establishing a healthy mental wellbeing culture, she notes.
Organisational culture and values are crucial, and rather than creating prescriptive rules for everyone, we should deal with people by exception, she suggests.
Calderone urges hypervigilance when it comes to identifying psychological risks.
The proposed code, she says, aims to create a framework for psychological safety in workplaces. For example, we cannot turn a test and tag technician into a psychologist, but we should be able to help them identify potential psychological risks.
Kennedy agrees that psychological hazards are “very different (to physical hazards) as they are so subjective to the worker that may develop any mental health condition”.
“People’s psychological make-up can be so different depending on past life experiences, genetic make-up and existing conditions. Some things can affect people very differently and often it comes down to persons perception of circumstances.”
You can use the same risk management approach, which would include consultation with workers, to identify psychological hazards as you do for any other hazard, says SafeWork NSW’s spokesperson. Key challenges are a lack of understanding about how to approach the issue, what is required and what is best practice, and capability.
“For HR professionals, a key message is that psychosocial hazards, including workplace behaviour, often need a work health and safety (WHS) risk management approach. Integrating HR and WHS approaches can be more effective,” says the spokesperson.
“The biggest challenge for PCBUs (person conducting a business or undertaking) is developing a framework that can provide guidance on workplace behaviour that is acceptable and maintaining a work environment that is fun, healthy and supportive without being so prescriptive as to stifle personal interaction and relationships that we as humans need on a day to day level with our work colleagues,” says Kennedy.
Draft code and non-compliance
This draft code was released for public consultation on 7 September and will be open until 31 October for submissions.
Once instituted, the code of practice will be a guide on how to comply with the legal obligations, says the SafeWork NSW spokesperson. “They may be relied on by courts when making determinations about the state of knowledge, and what is reasonably practicable in the circumstances to which the code of practice relates.”
Clearly this provides a framework for HR professionals to ensure compliance and conversely to be criticised for non-compliance, notes Calderone. The recommendation that PCBUs undertake a psychological risk assessment of the workplace would be a significant shift in how these matters are dealt with, says Kennedy.
“In my experience it is very uncommon and will be a fundamental shift for PCBUs who are used to dealing with more physically related risk consequences,” he says.
“Likewise, the recommendation for the reporting of psychological hazards is also profound change to how these matters are dealt with traditionally.”
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The comment above “we are all wired differently” is one of the main reasons why addressing psychological injuries has been so slow. The practice has been blame the weaknesses of the individual worker instead of looking to see if there are organisational failures. Imagine the rightful outcry if companies instead of managing their physical risks only selected staff who had the “right” “genetic make-up and existing conditions”. Many excellent standards on how to deal with workplace psychological risk have existed for many years – e.g. the “Canadian Standard”. Waiting for NSW to develop its new Code seems just like another… Read more »
By extension, then, the doctor assessing the claim for psychological injury must consider all pertinent facts and be well-versed in what constitutes a psychological injury versus a vexatious claim. From recent experience and with extreme frustration, the doctor did not consider all the evidence provided relating to the claim for psychological injury and as an employer, our recourse was nil.
Great discussion, to have your say on the NSW Draft Code of Practice for Psychological Health visit https://www.haveyoursay.nsw.gov.au/draft-code-psychological-health
I agree with Sandra Barbato’s comments. There is a clear deficiency in diagnosing and treating genuine psychological injuries. That allows for the frequent abuse and manipulation of the systems in place that are supposed to compensate genuine injuries. Most psychological claims in our experience are a result of perceived job insecurity due to an unwillingness to follow reasonable lawful instructions and/or an inability to accept responsibility for poor performance or behavioral misconduct. With respect to Michael Clark’s comment about “Imagine the rightful outcry if companies instead of managing their physical risks only selected staff who had the “right” genetic make-up… Read more »
Good workers are bullied by managers who feel uncomfortable that the person may eventually be considered for their job, even when the worker does not want their job at all. Other co-workers also feel uncomfortable for this reason, and because they feel they are being shown up for not pulling their weight. Co-workers can and do form cliques. Doctors and psychologist who perform assessments on behalf of businesses don’t always take into consideration all the facts at all, or more importantly document them. These doctors and psychologist can be reported to APHRA for fraud for not doing their jobs properly.… Read more »