Despite objections and in the face of recommendations published by an independent enquiry, the State Government passed the Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024 on Wednesday 13 March 2024.
Changes implemented by this Act come into effect on 31 March 2024, and will have wide ranging and severe consequences for many Victorians either already in receipt of WorkCover entitlements, or those yet to be injured.
Mental Injuries
New eligibility requirements have been introduced for psychological injuries sustained or progressive injury claims lodged on or after 31 March.
Workers suffering from stress or burnout from overwork are no longer eligible for WorkCover benefits. Only those workers who suffer psychiatric injury as a result of traumatic events will be eligible, and they have to work in a job in which experiencing traumatic events is usual or typical.
The Act inserts a new definition of ‘mental injury’ that arguably very few workers will meet, given it requires a threshold of significant behavioural, cognitive or psychological dysfunction and a diagnosis of a psychiatric condition.
It is likely that these new provisions will create many new disputes about which workers are eligible for compensation, leaving the Courts to determine their meaning.
Thankfully, the new definition does not impact the 13 weeks of provisional payments that applies to all new mental injury claims. Workers are still eligible for 13 weeks of treatment even if their claim is ultimately denied.
Weekly payments after the second entitlement period (130 weeks)
Previously, workers weekly payments could continue beyond 130 weeks if the worker has no current work capacity and is likely to continue indefinitely to have no current work capacity. The amendments add another requirement for this eligibility that applies to all workers who reach 130 weeks on, or after 31 March 2024.
To have payments continue beyond 130 weeks, the worker must now also have a whole person impairment of more than 20% (21% and over) in addition to the indefinite incapacity. This impairment percentage rating comes from the worker’s lump sum impairment assessment, or a new assessment arranged by the insurer.
This more than 20% requirement also applies to workers who apply for top up payments where they have returned to work for more than 15 hours per week, but less than full time.
Unfortunately, this means that the vast majority of workers will not be eligible for WorkCover payments beyond 130 weeks.
These amendments are to be reviewed by an expert panel on or after 1 January 2027 and before 1 January 2028.
How can I learn more?
Lisa Paul.
Principal Lawyer.
Lisa is a principal lawyer in the personal injury team at Robinson Gill. An Accredited Specialist in Injury Law, Lisa is a veteran advocate with extensive experience across the full spectrum of personal injury matters. Driven by a particular interest in cases on behalf of those injured in the course of their work, she specialises in worker’s compensation matters, however she is equally as passionate about TAC and public liability claims.
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