person holding pencil near laptop computer

How recent changes to the Victorian Workcover Scheme impact Factual Investigations

The Workplace Injury Rehabilitation and Compensation Amendment Act 2024 came into force on 31 March 2024 and applies to all mental injuries occurring on or after this date.  The changes have been designed to preserve the ongoing sustainability of the scheme, particularly in relation to mental injuries.

The changes are summarised by Martin Gannoni, Clarity’s Senior Consultant – Personal Injury Investigations, as follows:


Definition

  • A worker must now satisfy the definition of mental injury in the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRC Act’) to make a claim under the new mental injury provisions. This defines a mental injury as an injury that causes significant behavioural, cognitive or psychological disfunction which has been diagnosed by a medical practitioner in accordance with the Diagnostic Statistical Manual for Mental Disorders.


Employment must be the main cause

  • The worker must now prove that the mental injury is predominantly caused by employment. See section 39 (1A) WIRC Act.
  • Employment must also be a predominant cause in the case of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing mental condition. See section 40 (2A) WIRC Act.


Stress and Burnout due to events considered typical

  • A worker will not be entitled to compensation where the mental injury has been predominantly caused by stress or burnout because of events that may be considered usual or typical and are reasonably expected to occur in the course of their duties, under Section 40 (1A) WIRC Act.
  • However, entitlement to compensation for mental injuries has been maintained in the case of stress or burnout caused by bullying and/or harassment, subject to the definition of mental injury and causation.
  • Entitlement to compensation for mental injuries also remains in cases of stress or burnout which are related to traumatic events considered usual or typical and reasonably expected to occur, under section 39 (2A) WIRC Act.


Gathering evidence in mental injury claims

Factual Investigators gathering information for decision makers in pending mental injury claims, therefore now need to focus on the following areas:


The date of a mental injury

Was the mental injury sustained on or after 31 March 2024?

Was the mental injury sustained both before and after 31 March 2024 (in a gradual process)?

Dates for injuries occurring on or after 31 March 2024 will need to be confirmed, while gradual process claims will involve reference to the onset of symptoms and confirming the dates of all significant events both before and after 31 March 2024 in the leadup to the claim being made.

A Chronology of Key Events will assist decision makers in understanding the timeline of these complex matters.


External factors and pre-existing conditions

To determine whether work is the most significant factor (predominant cause), it is important to obtain a detailed account of all external factors, for example, life changes, family issues and other unrelated medical conditions, both physical and mental, that may be impacting the worker.

This evidence may come from the worker, close work colleagues, management, employer records and medical records, and this information may assist the decision maker when assessing the predominant cause of injury.


Expectations of the Worker’s role and traumatic events/stress/burnout

By interviewing and obtaining evidence from the worker, the Employer’s representatives and witnesses, an Investigator can assist a decision maker in establishing whether the events leading to the injury were usual, typical or expected in the worker’s role.

Sufficient evidence to establish the detailed circumstances of any traumatic events experienced by the worker in the course of their duties, and the role they played in the injury is also necessary. This places the decision maker in the best position to determine the worker’s eligibility for compensation under section 39(2A) of the Workplace Injury Rehabilitation and Compensation Act 2013.


It is vital that investigation companies provide ongoing training for their staff and update templates to ensure that the latest statutory amendments are at the forefront of all mental injury investigations moving forward.

It remains to be seen how the courts will interpret these amendments.


Martin Gannoni is Senior Consultant at Clarity Workplace Solutions, providing expert advice in Personal Injury Investigations. He assists the Clarity Factual Investigation Team with guidance in both common law and pending matters. By the time Martin retired from legal practise at MinterEllison in 2017, he had achieved more than 30 years’ experience acting for WorkSafe Victoria in complex litigation, including in the Supreme Court and Court of Appeal.

Contact us and speak with Peter Donegan, Manager – Factual Investigations, or Martin Gannoni, Senior Consultant, for advice on complex and urgent investigation matters or join our community to hear more about the latest developments in investigations.