Published: 30 June 2023
Author: Ross Inglis

The Victorian State Government has foreshadowed some significant changes to WorkCover legislation. The amendments will be made by way of a Bill, which is to be submitted to parliament in the spring session. Subject to the Bill being passed it is anticipated that the legislative changes will come into force in January 2024. 

We are advised that the legislation will not be retrospective. However in some instances it will apply to workers who are currently in receipt of weekly payments of compensation. 

Under the proposed changes, workers in receipt of weekly payments of compensation will face an additional hurdle to continue to be receive payments after these have been paid for a total of 130 weeks (the 130 weeks is an aggregate period and therefore will not necessarily start from the date of injury, unless an injured worker ceases and remains off work for a consecutive period of 130 weeks from the date of injury.)

Under the current legislation workers are entitled to receive ongoing benefits if they can establish they have no work capacity on an indefinite basis.  

Workers will now also need to establish that as a result of their injuries they have suffered permanent impairment of at least 20% when assessed under the relevant Guides.

Claims agents acting on behalf of the Victorian WorkCover Authority will be required to have workers examined by a qualified independent medical examiner (one who is qualified to carry out assessments in accordance with the American Medical Association Guides to Evaluation of Permanent Impairment – 4^th Edition. The Practitioners are required to undergo a course before they are qualified to carry out such assessments).     

At this stage the rights of appeal and/or the basis for an appeal are unclear. It is possible that workers who are assessed as having less than 20% whole person impairment under the Guides may be able to have the issue referred to a Medical Panel, who will then conduct an independent impairment assessment. Doctors can have different interpretations of the tables contained within the Guides. 

The additional requirement will mean it is likely that a number of workers will lose their entitlements under the legislation. For example, a disc herniation under the Guides is generally assessed at less than 10%. 

Clearly there is considerable opposition to this legislation as it will make it more difficult for workers with significant injuries to remain in receipt of weekly payments of compensation. It is not anticipated that workers’ rights to claim ongoing reasonable medical and like expenses will be affected. 

The other significant change flagged is to introduce legislation that will make it more difficult for workers with non-physical injuries to claim compensation.

Workers who suffer from post-traumatic stress, harassment, bullying and trauma during the course of their employment will still be eligible to lodge a claim for compensation.

However workers who suffer anxiety, depression and/or from an adjustment disorder due to the nature or conditions of their work will arguably be disentitled under the legislative changes that are foreshadowed.  

For example, workers who suffer from psychological injuries due to pressure of work, volume of work and lack of support will likely be prevented from claiming compensation. 

The government does plan to establish a new organisation called Return to Work Victoria which will cover the costs of medical and like expenses for all workers who lodge psychological injury claims for compensation for up to 13 weeks. However, it is unclear exactly how this will work in practice.

There are a number of questions that remain unanswered about the proposed changes, which will remain until such time the Bill is made public. As such, Stringer Clark will provide further information in due course once more specific information is made available. However, we are concerned about the degree to which the proposed changes are likely to adversely impact on workers right and entitlements.