Nobody likes to feel that they’re being taken advantage of. When you’re a small business owner with a tight budget, productivity pressures and little knowledge of “the system”, the prospect of being taken for a workers’ compensation ride is far from appealing. So what should you do if you have suspicions that the injury your worker is claiming for wasn’t actually caused by work?

There are three golden rules to keep in mind when you find yourself in this unenviable situation:

1. Determining whether or not a strain, sprain, mental health problem or other injury is work-related is NOT something that can be done using common sense. However, there are plenty of people who can give you advice and explain the situation to you.
    
2. Don’t lose sleep over suspicion: it is up to your insurer, not you, to determine whether a claim should be investigated.
    
3. Regardless of reservations you might harbour about the legitimacy of the claim, it is a good idea to provide the injured worker with sympathy and support.

This article explains each of these golden rules, and gives you tips for protecting your interests, while preventing drawn-out, costly disputes.

Golden Rule 1: Determining whether or not a strain, sprain, mental health problem or other injury is work related is NOT something that can be done using common sense.

There are a couple of reasons for this:

• Many workplace injuries – for example, musculoskeletal sprains and strains – can be linked to ordinary, seemingly non-demanding tasks, such as sitting and standing for extended periods. It might seem very unlikely to you that your workplace could have contributed to a workers’ health problem because you know you take safety seriously, but unfortunately such injuries can occur even in safe workplaces. The best person to determine whether a health problem is work-related is a medical professional who is up-to-date on the research and has a good understanding of “work causation”.
   
• Whether or not an injury is work-related for the purposes of workers' compensation is determined as much by law and politics as by medical issues. In fact, different Australian states and jurisdictions have different thresholds for determining whether an injury is work-related. This means that the same injury sustained in the same way might be considered work-related in Victoria, but not in NSW and vice-versa. Since you’re busy taking care of business, keeping up with legislative changes regarding “work causation” is probably not for you. But that’s fine, because there are people whose job it is to know the legislation inside out and stay on top of any changes: workers’ compensation insurers and occupational physicians.

If you have concerns about whether a workers’ compensation claim is legitimate, consider contacting:

• The claims’ manager at your insurer. You can air your concerns and get sensible information about how best to deal with the claim.
   
• A consultant, trained in occupational medicine, who will be able to talk you through the issues. 

Golden Rule 2: Don’t lose sleep over suspicion.

Although your approach may influence the process, you actually have limited control over whether or not a claim is investigated and finally accepted. Claims determination is a job for the workers' compensation authority and your insurer. That can be a good thing, for a couple of reasons:

• Firstly, it frees you up to concentrate on caring for and accommodating the worker (more of that below); and
   
• Secondly, it gives you an avenue for maintaining good relations with your worker, and this is HUGELY important in terms of claim costs and duration. If the insurer does decide to investigate the claim and the worker is upset about it, it may be appropriate to remind them that it is not up to you to determine the acceptance or rejection of claims. Instead, stress that your job is to support them back to work as quickly and safely as possible.

Sometimes, openly expressing uncertainty about the work-relatedness of a health problem may be appropriate. For example, you might say, “I’m not sure whether your tasks at work contributed to your strain, but let’s get someone to check it out and then we’ll all know for sure.”

However, this openness needs to be balanced against the knowledge that the system tends to err on the side of worker, so borderline claims are often accepted. Suspicion can breed suspicion: and when workers and employers see each other as “enemies”, claim cost and duration goes through the roof.

Golden Rule Three: Regardless of your reservations, be supportive and accommodating, and communicate well.

Consider this common scenario...

You suspect that an injury is not work-related. The insurer shares your suspicions about the claim, initiates an investigation and has the worker assessed by an independent medical expert. A decision is made that the injury is not work related and the claim is rejected. The worker decides to take the matter further, through the dispute resolution process relevant to your jurisdiction which may be a tribunal, conciliation or the courts. AT THIS POINT, PREVIOUSLY REJECTED CLAIMS ARE OFTEN ACCEPTED.

This can leave you in a very bad position, because:

• Rehabilitation and treatment has been neglected during this period of conflict and strain;
• The worker may have developed depression or anxiety due to the stress or uncertainty, delaying and complicating recovery - and this secondary injury may also be eligible for workers' compensation;
• The worker has been off work, with nothing to do except think about how badly they’ve been treated; and
• Relations have soured between you, the worker and the insurer.

Disputed claims can end up costing a lot of money, causing stress and having poor outcomes.

In most circumstances, the best results are achieved by focusing on supporting and accommodating the worker from day one. Putting suspicion aside not only makes things easier and less stressful for the worker, it is also often good for your business’s bottom line. And that’s good for you too.