Perin Mustafa, associate; and Laura Di Lorito, lawyer
Work-related injuries can occur when you least expect them. Sometimes, they can have a devastating impact on your life.
Victorian law has established a ‘no-fault’ Workcover scheme for injured workers. In order to be able to access entitlements under the Workcover scheme, a worker does not have to establish that their employer was at fault in causing their injury but rather that their injuries occurred due to or in the course of employment.
From 1 March 2024, the Workcover legislation was modernised to address the financial impact of the significant rise in claims – particularly psychological injury claims, which make up 16 per cent of new Workcover claims lodged. To ensure the sustainability of the Workcover scheme, the Victorian government introduced the following key changes:
Eligibility for compensation of mental injury claims
Mental injuries that occurred on or after 31 March 2024 must satisfy the following test:
- The mental injury must be diagnosed by a qualified general practitioner or psychiatrist in accordance with the current diagnostic criteria (DSM-5).
- The mental injury must cause significant behavioural, cognitive or psychological dysfunction.
- The mental injury must be predominately caused by employment.
Mental injuries caused by stress and burnout are now excluded from the Workcover scheme unless they are caused by traumatic events that are considered usual or typical and reasonably expected to occur in the course of the worker’s duties. This particular change may impact emergency service and other frontline workers.
Eligibility for weekly payments after 130 weeks
The Workcover scheme provides an entitlement to weekly payments for lost wages for injured workers with an accepted Workcover claim. After receiving weekly payments for 130 weeks, weekly payments will only continue if a worker is considered to be unfit to perform any suitable work and that incapacity is likely to continue indefinitely.
Additionally, since 31 March 2024 the law now requires that a worker must also be assessed as having suffered a whole person impairment of 21 per cent or more pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition).
It is expected that the majority of injured workers will not meet this criteria and this change is likely to limit the number of injured workers in receipt of weekly payments beyond 130 weeks.
Changes to arbitration
In the circumstances where a Workcover claim is rejected, and has been referred to the Workplace Injury Commission, there is no longer the option to refer unresolved liability disputes to arbitration.
As of 31 March 2024, liability disputes that were previously eligible for arbitration can only be referred to the Magistrates’ Court of Victoria. It is anticipated that this change will see an increase in the number of claims that require litigation.
In summary, we expect a significant reduction of entitlements for workers suffering from stress-related psychological injuries and workers who have a work incapacity beyond 130 weeks.
The Workcover scheme can be complex and hard to navigate, particularly in light of these recent changes. For that reason, it is beneficial to seek legal advice at the earliest stages of making a Workcover claim. In instances where a WorkCover claim is rejected due to any of the preclusions mentioned above, a lawyer can provide advice about a worker’s rights to dispute the insurer’s decision. Alternatively, if a Workcover claim is accepted a lawyer can provide an injured worker with advice about other forms of compensation available to compensate a worker for their pain and suffering and loss of earning capacity.
Contact your ANMF delegate to seek information or a referral for a free initial appointment with a Workcover lawyer at Gordon Legal.
