By Micheal Niu, Lawyer
On 31 March 2024, a number of changes came into effect to modernise Victoria’s WorkCover scheme under the Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024 (the Amendment). This article provides a summary of the key changes to look out for in Victoria’s WorkCover scheme.
New definition for mental injury claims
A new definition for mental health injury has taken effect for mental injury claims made on or after 31 March 2024.
This new definition requires that the injury:
- a) causes significant behavioural, cognitive or psychological dysfunction;
- b) predominantly arose out of or in the course of employment; and
- c) has been diagnosed by a medical practitioner in accordance with the latest version of the Diagnostic Statistical Manual of Mental Disorders.
This new definition will also extend to the recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing mental injury.
While ‘predominantly’ is not defined in the Amendment, the Explanatory Memorandum indicates that this is intended to take its ordinary meaning. The word ‘predominantly’ has also previously been defined by the Courts in the context of ‘reasonable management action’ to mean a cause that must ‘exceed the other or all other causes combined in power and influence’.
Further to this, mental health injuries will now prohibit stress and burnout claims that arise from events which are considered usual or typical and reasonably expected to occur in the course of a worker’s duties.
Exceptions
As an exception, mental health injuries which are predominantly caused by traumatic events which occur out of or in the course of a worker’s employment will be accepted. This is expected to apply to front-line workers such as first aid responders or police officers.
Whilst not strictly provided in the Amendment, the Explanatory Memorandum indicates that mental health injuries caused by bullying, harassment or discrimination are still intended to cover mental health injuries.
It remains to be seen how the Courts will apply the new definition and higher threshold for mental injury claims.
Higher threshold for claims post 130 weeks
Workers who wish to continue receiving weekly payments after 130 weeks on or after 31 March 2024 must now demonstrate that:
- a) they have no current capacity for work which is likely to continue indefinitely; AND
- b) they have received a whole person impairment rating which is greater than 20%.
Workers whose entitlement have ceased after the 130 week period may be eligible to reapply for weekly payments, provided the surgery undertaken to treat the compensable injury has resulted in an indefinite capacity for work and a whole body impairment rating greater than 20%.
WorkSafe Victoria or a self-insurer will also have new powers to determine it is not necessary to assess a worker’s impairment in circumstances where:
- a) there is no reasonable prospect of the worker having a whole body impairment rating greater than 20%;
- b) the worker resides overseas; or
- c) it is not reasonable or practicable for the worker to attend an assessment.
An interim determination on a worker’s eligibility for weekly payments after 130 weeks may also be made by WorkSafe Victoria or a self-insurer in instances where:
- a) the worker’s injury has not stabilised;
- b) the worker has been diagnosed with an eligible progressive disease which is unlikely to stabilise;
- c) the worker is under the age of 18 years; or
- d) information required to make the impairment determination is not available for any reason.
Key takeaway
It is anticipated that an employer’s exposure to mental health injury claims and claims post 130 weeks will be reduced as a result of the more stringent definition and thresholds introduced by the Amendment.
If you have any questions in relation to this article or employment practices in general, please contact the MST Lawyers’ Employment Lawyers on +61 3 8540 0200 or email workplace@mst.com.au.
Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024
Explanatory Memorandum, Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Bill 2023
Pulling v Yarra Ranges Shire Council [2018] VSC 248
