Taking employees as we find them – Have Workcover mental health claims become even more complex?

Mental health issues in the workplace are complex. When you add claims of bullying and a rejected Workcover claim appeal, it can be complexity upon upon complexity.

In this article, we review a decision made by the Queensland Industrial Relations Commission in November 2019. This decision upheld an appeal by an employee, Daniel Kiesouw, whose Worker’s Compensation request had been rejected by the Regulator in 2016. We will explore some of the key factors in the decision and look at some of the learnings from Kiesouw’s case.

The Background of Daniel Kiesouw’s Case

Daniel Kiesouw was employed as a draftsperson with McConnell Dowell, a construction company in December 2011. In early 2012, he was transferred to a project site, working with Matt McSkimming, who was in charge of the construction part of the project. He was not the direct line manager of Kiesouw.

Over 10 months from early 2012 to January 2013, there were a number of incidents that occurred involving the two employees. During the case, Kiesouw reported aggressive, threatening and abusive behaviours by McSkimming, which the member, Deputy President Bloomfield, believed. They were believed by Bloomfield because both parties confirmed incidents occurred, albeit described differently; and because Bloomfield found McSkimming to be a less credible witness.

Also presented in this case was the fact that Kiesouw had a previous mental health history dating from the mid-1990s. He had been treated for a Major Depressive Disorder and been treated which his own psychiatrist admitted was likely to reoccur spontaneously or at high risk times including periods of high stress. He was also drinking high levels of alcohol, which he also had a history of.

It should be noted that the case referenced workplace bullying, but it was not central to the case, which I will come back to in my review.

The Decision

One might think that after reading Kiesouw’s history, there was little doubt that it was his history was the primary cause of his injury and not the incidents in the workplace. Yet this is not the case and here is why.

A key influencer to this decision was Kiesouw’s psychiatrist, Dr Likely. Dr Likely ably demonstrated his credibility as a truly independent and qualified witness with a very balanced knowledge and view of events.

The respondent against Kiesouw, the Regulator’s legal representative, argued that his injury was a spontaneous reoccurrence of the Major Depressive Disorder. They argued that the first three incidents that occurred were innocuous and were indicators of Kiesouw’s decline, rather than contributing to a bullying episode. This was further evidenced by Kiesouw’s increased alcohol consumption.

However, Dr Likely opined this was unlikely (to which Bloomfield ultimately agreed). Likely consistently responded to every question reminding the Commission that the disorder could reoccur in periods of high stress. Kiesouw’s perception was that the incidents, and ultimately a final confrontation, had been significant enough to create this level of stress and his fall into a major depressive episode. Kiesouw’s alcohol consumption, he argued, was not a sign of the reoccurrence, but a response to the high stress level he was experiencing; (he was self medicating). Dr Likely opined that while these events might appear to be innocuous to some, in Kiesouw’s perception they were not and, therefore were causal factors to the mental health injury sustained in the course of his employment.

Implications for our workplaces

Perception – taking employees as we “find them”

The decision to accept Kiesouw’s perception as the reality and a causal factor to his workplace injury is hugely significant. In the past, workplace injury has had certainty through physical evidence; broken bones, pulled or strained muscles, cuts and bruises, and physical pain.

However, this decision brings a whole new type of facts into consideration when deciding on injury. It is the fact of what that employee perceives and what that person might feel. In this case, it is suggested “employers take their employees as they find them”. In other words, perception is reality

Stereotyping mental health

The respondents in this case argued based on mental health stereotyping. They asked the Commission to accept that as Kiesouw had a previous mental health condition, it could only be that mental health condition being the cause of the problem. To be honest, it’s something we would probably expect a respondent to do.

However, what this case does get us to do is consider the realities of mental health conditions. People experiencing mental health episodes can be well at times, just as they can relapse. As stress can cause physical injuries to become exacerbated (eg. through muscular tightness or tiredness leading to injury), it can also lead to the decline back into mental health illnesses.

Employers need to consider this in their decision making. Creating safe environments where employees can share whether they have a mental health condition without judgement can only help better preventative solutions. Where if the work environment becomes too overwhelming, it can be raised and a plan implemented to prevent or minimise the mental health episode reoccurrance.

Bullying as a Workcover Claim

It is important to highlight this question as it is one that can be confusing. The decision document from this case made a reference to bullying a few times. However, there are points that need to be noted in relation to this.

Firstly, a question that is asked of me in regards to some cases is “why did the Regulator find a matter to be bullying, when it was a single isolated incident, which is not bullying by definition?”

Despite bullying being suggested, this case did not explore whether this was a matter of bullying or not. The primary questions explored were whether the employee was injured in the course of their work and was that work the cause of their injury. The behaviours that were experienced were established to be the cause of Kiesouw’s injury and that was a key question that needed to be answered. This could be an answer to that question proposed above.

Secondly, the respondent referred to the first three incidents as being “innocuous”, despite Kiesouw describing them as involving aggressive language and behaviour and threats. It was suggested that these could not, or be seen to, constitute, bullying incidents. There appeared to be a lack of knowledge as to what constitutes bullying and it is important to understand that bullying is a series of behaviours over a period of time that create a picture, rather than viewed as separate incidents viewed in isolation. It is important to be aware of this when assessing whether a situation is bullying or not.

Complexity and appropriate workplace support

Kiesouw’s case demonstrates the complexity of mental health injury as it can apply to the workplace. An injury for one employee and the cause of that can be individual.

This means from the start, our focus needs to shift to workplace support based solutions focused on individualised responses, placing the employee at the centre, implementing reasonable adjustments both physical and behavioural, helping them to return to, or maintain, a reasonable level of workplace health.

It is a situation in which many employers are not equipped, skilled or resourced to address in managing employee mental health. It’s why we provide the Workplace Bullying Support Program, to help employers address that gap.

Are you curious to learn more about our approach to workplace bullying support?

Contact us today for a confidential discussion on how we can help you support your employees through our Workplace Bullying Support Program.

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