Amendments to the Workplace Injury Rehabilitation and Compensation Act – “WorkCover Scheme Modernisation Bill”

Written by Gennaro Fittipaldi 
on 5 Apr, 2024

The Modernisation Bill makes a number of important changes to the Victorian workers compensation scheme effective from 31 March 2024.

What are the key changes?

  • Changes to eligibility for compensation for mental injuries:
    • Introduces a definition of mental injury, and
    • Excludes certain circumstances in which there will be an entitlement to compensation.
  • Ongoing entitlement to weekly payments of compensation after 130 weeks:
    • Introduces a new threshold for entitlement to payments beyond 130 weeks.

Eligibility for compensation for mental injuries

In order to make a claim for compensation after 31 March 2024 with respect to a mental injury, you will need to satisfy the new definition.

A mental injury is now defined as an injury that:

  1. causes significant behavioural, cognitive or psychological dysfunction, and
  2. has been diagnosed by a medical practitioner in accordance with the Diagnostic Statistical Manual of Mental Disorders.

A mental injury must meet this definition to be eligible for compensation. This means that you must attend your General Practitioner or Psychiatrist for diagnosis.

Predominant cause

In addition to satisfying the definition above, you must also be able to demonstrate that employment was the predominant cause (strongest or largest) of your mental injury to be eligible for compensation.

The definition extends to the recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing mental injury.

Exclusions

As of 31 March 2024, you will no longer be able to claim for compensation for a mental injury if the cause is a result of stress or burnout.

A worker may remain eligible for compensation in some situations, including:

  • bullying and harassment, and
  • if a worker’s mental injury has been predominantly caused by stress or burnout resulting from traumatic events that are considered usual or typical and reasonably expected to occur in their work eg. Frontline workers

Weekly payments after the second entitlement period

Currently, you are entitled to weekly payments of compensation for a period of 130 weeks as long as you are certified as unfit for pre-injury duties. You can remain on payments after 130 weeks if you can demonstrate that you have no current work capacity and that this is likely to continue into the foreseeable future.

The new changes to the legislation require you to demonstrate the following:

  1. No current capacity which is likely to continue indefinitely, AND you receive a permanent whole person impairment rating of over 20%. If you cannot satisfy both these requirements, your weekly payments will not continue post 130 weeks.
  2. Where you have returned to work for more than 15 hours per week and earning more than $205 per week (indexed annually) and are assessed as being indefinitely incapable of any further or additional employment, AND you receive a permanent whole person impairment rating of over 20%.

If you are currently within the 130 week period as at 31 March 2024, these changes will affect you. If you have passed the 130 week period, you will not be affected by these changes.

We understand that the insurer is likely to send you a notice of injuries to be assessed. We recommend that you contact our office upon receiving this notice so that we can ensure all the relevant injuries are included and provide you with further advice.

Under the new changes, the insurer is required to conduct reviews of a person’s entitlement to weekly payments after 130 weeks every two years.

If you have any concerns about how these changes may impact on your claim, please contact our office to discuss.

Gennaro Fittipaldi

Gennaro Fittipaldi specialises in WorkCover and personal injury litigation, with over a decade of experience defending claims across Melbourne and regional Victoria. Formerly an in-house lawyer at WorkSafe Victoria and a Senior Associate at Minter Ellison, he possesses unique insights into insurer operations, enhancing client outcomes. Gennaro is renowned for his technical expertise and a supportive approach, offering strategic, informed advice to guide clients through complex litigation processes.