Victorian legislation passed earlier this year has come into effect, which means changes to mental injury claim requirement for WorkCover patients.
Changes to Victoria’s WorkCover scheme mean GP patients with short-term stress or burnout will no longer be eligible for WorkCover payments and those on the scheme will require an additional eligibility assessment after 130 weeks.
Unions have criticised the changes which passed through the state’s parliament in March, saying they discriminated against workers with mental health injury and would prevent others from seeking help in the future.
“For many other injured workers this is a sentence of poverty as they’ll be kicked off the scheme with no income at 130 weeks,” Luke Hilakari, secretary of the Victorian Trades Hall Council posted on the social media platform, X.
The changes will apply to patients who have been receiving payments for 130 weeks and will need to be reassessed, or whose injuries occur on or after 31 March 2024.
A Certificate of Capacity and medical reports must specify how all aspects of the new definition of mental injury for the purposes of compensation under the scheme are met. That is:
- it “causes significant behavioural, cognitive or psychological dysfunction” and
- there is a diagnosis, which can only be made by a GP or a psychiatrist, “in accordance with the most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM)”.
“To be compensable, the injury needs to cause a significant level of interference with the worker’s regular functioning,” the WorkSafe directive says.
“An injury that causes significant behavioural, cognitive or psychological dysfunction is unlikely to be a short-term injury or an injury that does not significantly impair a worker’s function.
“Symptoms that do not result in a diagnosable mental injury because they do not cause significant dysfunction, such as short-term stress response, are not compensable.”
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Stress and burnout mostly excluded, with exceptions
The injury has to be predominantly caused by work in order to be covered. But even where the injury was caused by work, it can’t be for stress or burnout caused by “events that are considered usual or typical; are reasonably expected to occur in the course of their duties”. That means interpersonal conflict, unless it’s harassment or bullying, working long hours, or workload pressures are not covered.
“This evaluation is not carried out in any technical or formal way but by applying common sense to the facts of the particular case,” the directive advises.
However, there is an exception for jobs that can involve traumatic events on a regular basis.
Examples given are ambulance officers, lawyers, and roles requiring workers to “repeatedly witness or hear details about trauma that other people have lived through”.
“Vicarious trauma is likely to be considered a traumatic event,” but “fear of a traumatic event” is not.
Provisional payments for up to 13 weeks or until a claim is accepted or rejected will continue to be available.
Beyond 130 weeks
For weekly payments to continue beyond 130 weeks, there is now an additional component called “whole person impairment”. According to the practice directive for medical practitioners, payment will only continue if the patient has:
- “a whole person impairment of 21% or more as a result of their compensable injury or injuries, and
- no current work capacity and this is likely to continue indefinitely.”
Medical reports, including clinical records, hospital records, pathology and diagnostic reports, along with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides) and the WIRC Act will help the “decision makers” determine if that percentage has been reached.
