There has long been talk of a revamp to Victoria's workers compensation scheme, WorkCover. This has now come to fruition, with changes taking effect from 31 March 2024. The changes were made pursuant to the Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024 ("Scheme Modernisation Act").
These changes substantially affect the entitlements of injured workers and, in many ways, diminish the rights of workers.
WHAT ARE 2024 VICTORIAN WORKCOVER CHANGES?
There are 2 main changes to WorkCover from March 2024:
- Changes to the eligibility criteria for mental injury claims; and
- Implementation of an additional requirement for workers to be entitled to continue receiving weekly payments beyond 130 weeks.
CHANGES TO MENTAL INJURY ELIGIBILITY CRITERIA FOR WORKCOVER CLAIMS
Prior to the implementation of the changes to WorkCover (which came into effect in March 2024), mental injuries arising from stress due to overwork or burnout were eligible for compensation. "Mental injury" was not defined.
Since the changes came into effect, a mental injury is now defined as an injury that:
- causes significant behavioural, cognitive or psychological dysfunction; and
- has been diagnosed by a medical practitioner in accordance with the Diagnostic Statistical Manual of Mental Disorders.
Any mental injury that falls outside this specific definition is excluded.
To be eligible to receive compensation for a primary mental injury, a worker's employment must be the largest or most significant contributing cause of a worker's mental injury. This now technically means that if a worker suffers from a mental injury which is equally a result of non-work related factors as well as work related factors, the worker may not be eligible to receive worker's compensation.
A further and more concerning change to the legislation is the new exclusion for mental injury as a result of stress or burnout. Workers who have suffered a mental injury that has mainly been caused by stress or burnout due to what may be considered typical work duties are now ineligible for worker's compensation.
Importantly, this does not impact upon workers who suffer mental injuries due to:
- bullying and harassment; or
- stress or burnout resulting from traumatic events.
ADDITIONAL CRITERIA FOR WORKCOVER WEEKLY PAYMENTS AFTER THE SECOND ENTITLEMENT PERIOD (AFTER 130 WEEKS)
Another significant change is an additional requirement to be eligible to receive weekly payments after the second entitlement period (after 130 weeks).
Prior to the changes, in order for a worker to receive weekly payments after 130 weeks they had to establish that they had no current work capacity and that is likely to continue indefinitely.
This criteria is still required, but workers now also have to have a whole person impairment (WPI) of 21% or more. To make this determination, the following assessments now need to be done:
- Existing assessment of a worker's capacity for employment; and
- A new whole person impairment assessment.
If a worker meets the existing capacity test but is under the 21% WPI threshold, they cannot remain on weekly payments after 130 weeks.
WHEN DO THESE CHANGES TO WORKCOVER COMMENCE?
These changes came into effect on 31 March 2024, and are applicable to:
- all new mental injury (psychological injury) claims that occurred on or after 31 March 2024;
- claims that reach 130 weeks (of weekly payments) on or after 31 March 2024.
WHAT DO THE WORKCOVER CHANGES MEAN FOR INJURED WORKERS?
These changes, while developed to keep the worker's compensation scheme sustainable, have had the consequence of diminishing workers benefits. Practically, it now means that some workers who have a mental injury may be excluded from the WorkCover scheme (if such injury was caused due to stress/burnout).
The additional WPI requirement for the second entitlement period of weekly payments now makes it significantly more difficult to remain on weekly payments after 130 weeks. The WPI assessment is a restrictive one, and many workers who have injuries that significantly impact on their ability to return to any work but fall under the threshold cannot access WorkCover weekly payments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.