Proposed changes for Victorian WorkCover claims in 2024

There are proposed changes to the Victorian WorkCover scheme that we expect to debut in 2024. This blog is aimed at providing a brief outline of the proposed changes for injured workers in receipt of, or claiming worker’s compensation benefits after a workplace accident.

By way of summary, a parliamentary bill, Workplace Injury, Rehabilitation Compensation Amendment (WorkCover Scheme Modernization) Bill 2023, has been proposed with the intention of enactment as early as 1 January 2024 but no later than 31 March 2024.

The proposed changes would mean that those seeking to claim compensation for mental health injuries as a result of, for example, stress or burnout from the nature and conditions of work will no longer be eligible to claim WorkCover. This proposal does not include mental health injuries from traumatic events such as bullying, harassment or discrimination in the workplace.

Additionally, there will be a requirement that the mental health injuries have predominantly arisen out of or in the course of employment to be considered eligible for WorkCover benefits. This replaces the previous “significant contributing factor” test.

Furthermore, the mental health injury must be a diagnosable condition by a medical practitioner which does not include a psychologist.

Currently, a worker is entitled to a total of 130 weeks of weekly payments provided that they do not have a current work capacity for their preinjury duties and are able to provide WorkCover certificates of capacity to confirm this.

A worker can continue to receive weekly payments after 130 weeks if they can establish that they do not have a current work capacity for suitable employment and that their incapacity is likely to continue indefinitely.

You can read more about the current eligibility in our earlier blog, “WorkCover weekly payments after 130 weeks”.

With the proposed changes, workers will need to show that they have more than a 20% whole-person impairment and no current work capacity that is likely to be indefinite. A medical examination by a doctor qualified in providing impairment assessments under the AMA guides 4th edition will need to be arranged by the insurer.

This threshold will also be applicable to claims for top up payments after 130 weeks.

The proposed changes require that the insurer conduct reviews of a person’s entitlement to weekly payments after 130 weeks every two years.

If a worker is unhappy with the assessment, a referral can c be made to the medical panel for final and binding determination.

Self-insurers, in particular, will be provided with clear set up guidelines on how to manage these assessments going forward.

Another change is proposed to the newly formed arbitration process at the workplace injury commit.

You can read more about the current process in our earlier blog, “Arbitration: the alternative dispute process for WorkCover disputes”.

The proposed changes are related to the ability for arbitration to make decisions in relation to eligibility or initial liability determination, such as:

• • whether a person is a worker as defined under the Act;
  • whether the injury is a prescribed injury;
  • whether the injury arose out of or in the course of employment; and
  • other preliminary matters that must be considered before a determination is made to accept or reject a claim for worker’s compensation.

These proposed changes are going to substantially change the WorkCover landscape for the future.

To the extent of our understanding, these changes will not apply retrospectively but rather to claims lodged on or after a specific date around the enactment of the proposed bill. However, we expect that the 130-week entitlement will apply to all claims approaching that milestone from when the bill is enacted.

Polaris Lawyers consider that these changes will affect injured workers significantly, and we continue to monitor the progress of this bill and what the implications are to our clients and stakeholders at large.

If you are concerned about the changes and wish to discuss this with a worker’s compensation lawyer, please contact Polaris Lawyers.