Significant changes to the Victorian WorkCover Scheme came into effect on March 31, 2024. These changes affect eligibility to receive weekly payments after you have received 130 weeks of weekly payments, and new claims for psychiatric injuries.

Please note: these changes do not apply to individuals who have passed 130 weeks as of March 31, 2024. If this is your circumstance, these changes do not impact you.

Prior to the recent changes, to remain in receipt of weekly payments post 130 weeks, you needed to prove that you had no current work capacity and this was likely to continue indefinitely (“no current work capacity test”).

Alternatively, if you were working at the 130 week period mark, you could have applied for top-up payments, if the following criteria were satisfied:

You have returned to work for a period of not less than 15 hours per week;

  1. You are in receipt of current weekly earnings of at least $228.00 (indexed annually);
  2. You can show that you are incapable of undertaking further additional employment or work which would increase your current weekly earnings;
  3. You can show the likelihood that your current level of capacity is likely to continue indefinitely, that is, your current level of capacity will not improve in the foreseeable future (“return to work test”).

Changes to the no current work capacity test

From 31 March 2024, your entitlement to weekly payments of compensation ceases after 130 weeks of weekly payments, unless you can establish that:-

  1. You have no current work capacity and this is likely to continue indefinitely; AND
  2. You have a whole person impairment of more than 20% (i.e. 21% or greater) resulting from one or more compensable injury.

Changes to the return to work test

The same criteria applies as before for the ‘return to work’ test. However, post 31 March 2024, you will need to show a whole person impairment of more than 20% (i.e. 21% or greater) resulting from one or more compensable injuries (as defined above).

The process of assessment

The WorkCover insurer will arrange an impairment assessment for you in the lead-up to your 130 weeks of weekly payments of compensation with an independent medico-legal examiner. The outcome of this assessment will be used to determine whether or not you have an ongoing entitlement to weekly payments after 130 weeks. It is also anticipated that this examination will be used to determine your degree of impairment for your permanent impairment benefit lump sum claim (if you have not previously lodged this claim).

The WorkCover insurer also has the power to determine if and when it is not necessary or practical to obtain an impairment assessment. Such circumstances include:

  • When the insurer determines that you have no reasonable prospect of having a whole person impairment of 21% or greater;
  • When the insurer determines that you have no reasonable prospect of having a whole person impairment of 20% or less;
  • When you reside overseas;
  • Where it is not reasonable or practicable for you to attend an assessment.

The WorkCover insurer also has power to make an interim decision on eligibility for payments post-130 weeks in circumstances where:

  • Your injuries are not stable;
  • You have been diagnosed with a progressive disease which is unlikely to stabilise;
  • You are under the age of 18 years;
  • Information required to make the determination is not available for any reason.

Any interim decision remains in force until an ongoing eligibility determination is made.

Any assessment of whole person impairment cannot be reviewed because of a ‘material change’ or due to a deterioration of the injury or a consequential injury that arises after the impairment assessment.

How is the whole person impairment calculated?

Your level of whole person impairment for physical injuries is assessed under the American Medical Association’s Guides to the Evaluation of Impairment (“AMA Guides”). Where you suffer from a psychiatric injury, your whole person impairment is assessed under the Guides to the Evaluation of Psychiatric Impairment for Clinical (“GEPIC”).

To meet the whole person impairment threshold that has now been introduced, it is important to note:

  • Physical and mental/psychological injuries cannot be combined – meaning you will need to have either a physical or psychological injury that is 21% whole person impairment or greater.
  • Secondary psychological injuries – usually psychological injuries suffered as a consequence of a physical injury – are excluded from the whole person impairment calculation.
  • Multiple injuries arising from the same event or circumstance can be combined (i.e. all physical injuries from the same accident can be combined).
  • The introduction of the term ‘compensable injury’ limits the assessment to injuries where liability has been accepted or established and you have or have been entitled to weekly payment during the second entitlement period (weeks 14 to 130).

New Workcover claims for psychiatric injuries

In order to establish an entitlement to compensation, you must have suffered a psychiatric injury which causes significant behavioural, cognitive, or psychological dysfunction, diagnosed by a medical practitioner in accordance with the DSM-5. The mental injury must have been predominantly caused by employment.

Injured workers suffering from stress or burnout are no longer eligible to claim workers compensation, unless the injury occurred from a traumatic event or you can show that the cause of your injury was not ‘usual or typical and reasonably expected to occur’. If you have suffered an mental injury as a consequence of exposure to trauma, you must also be working in a job where exposure to trauma would be usual or typical and reasonably expected to occur e.g. emergency services workers.

These changes to eligibility do not impact a worker’s entitlements to provisional payments under the scheme.

Maxiom’s Position regarding the reforms

The Team at Maxiom Injury Lawyers objected to the changes and lobbied with influential organisations such as the Australian Lawyers Alliance against its implementation. We are disappointed that, despite our strong objection, the State Government has imposed these changes at the expense of our clients.

We will continue to advocate for further reforms to the WorkCover scheme to introduce changes that are fairer to injured workers. There is to be a parliamentary review into the above changes in 2027. It would assist us in preparing submissions for this review to have your stories about the impact of these reforms on you. We want to know how these changes impact you and your families.

We also encourage you to raise your concerns with your local members of Parliament. Make them aware of the consequences and how you and your families are being affected.

Please contact us should you have any questions in relation to the above changes. We reiterate our commitment to your WorkCover claim. If we can be of any assistance to you or your family during this difficult time, please do not hesitate to contact us.