Managing WorkCover’s presumption of “reasonable management action”
Queensland Teachers' Journal, Vol 127 No number 4, 3 June 2022, page no. 27
Psychological injuries have always been an occupational hazard for teachers and school leaders, and the pandemic has certainly not led to a reduction in these injuries and the resulting WorkCover claims.
QTU members continue to juggle stressors, including ill-behaved students and their equally badly-behaved parents, increasing workloads and disrupted workplaces, and too often their mental health suffers as a result.
Unfortunately, when a member’s psychological injury has been caused by factors like student behaviour, bullying, or other non-management factors, wherever possible WorkCover leans heavily on the notorious “reasonable management action” exclusion to reject a claim.
Put simply, as a result of Section 32 of the Workers’ Compensation and Rehabilitation Act 2003, a claim for a psychological injury can and will be rejected if WorkCover can connect the cause of the injury to “reasonable management action”.
Specifically, the exclusion in subsection 32 (5) (a) states: “‘Injury’ does not include a psychiatric or psychological disorder arising out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment."
What constitutes reasonable management action taken in a reasonable way is usually a matter for debate, but what is certain is that, if given the slightest opportunity, WorkCover’s decision makers will refuse a claim on the basis of this exclusion.
Reasonable management action versus the laws of time and space
This is clearly illustrated by the recent experience of a QTU member whose claim for workers’ compensation was rejected on the basis that management action was reasonable, even though this action had not even occurred at the time of their injury.
The member was extended legal assistance by the QTU to enable Holding Redlich to prepare their application for review and draft their supporting submissions, with the member’s input.
This QTU member held a management position within a school and suffered a psychiatric injury when they received a text from a junior teacher at the school that was highly critical of the member’s work. This member’s GP diagnosed a psychiatric injury and noted the date of injury as the date the text was received by the member.
WorkCover rejected the claim, arguing that management’s response was reasonable because the member was provided with appropriate support and offered access to the Employee Assistance Program. WorkCover also found that it was reasonable for the employer to investigate the allegations made against the member, even if they could not be substantiated, so their claim was excluded.
Upon review, it was submitted that the member’s injury was caused when the text from the junior teacher was received, so the response of management following receipt of the text was not relevant to the injury. The submissions noted that WorkCover should not have taken into account events following the date of injury and that there was no basis for the text sent to the member to be considered management action.
Thankfully, logic and the laws of time and space prevailed, and the regulator accepted the member’s WorkCover claim on review.
WorkCover and management action
WorkCover regularly tries to steer employees making psychological injury claims towards acknowledging that their injury was caused, at least in part, by actions taken or not taken by management.
This carve-out makes sense in circumstances where an employee suffers an injury because they have been subject to appropriate disciplinary processes or they have been unsuccessful for a promotion for legitimate reasons.
Unfortunately, this recent successful review is an example of how, in cases where a member’s psychological injury has been caused by factors like student behaviour, bullying, or other non-management factors, WorkCover reaches too readily for the reasonable management action exclusion to reject a claim.
Holding Redlich advises members who have suffered an injury to be careful when identifying the factors that caused their illness. Members should also resist any pressure from WorkCover to concede that the support they received from management in relation to their injury was lacking or insufficient, where it is not relevant to their injury.
Legal support
The QTU extends full legal support to members who have had a WorkCover claim rejected, enabling Holding Redlich to support them through the review process by drafting and lodging their submissions for review to the regulator.
You have three months from the date of the WorkCover decision rejecting your claim for compensation within which to lodge your review. Members are encouraged to apply to the QTU for legal assistance as soon as they receive their decision, to allow Holding Redlich enough time to prepare their submissions and application for review.