Information about determining if a mental injury predominantly arose out of or in the course of employment. This information is for independent medical examiners (IMEs). It may also be useful for treating health practitioners.
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On 31 March 2024, changes to the Workplace Injury Rehabilitation and Compensation Act 2013 came into effect. These include changes to the eligibility criteria for mental injury compensation. These changes will deliver a more contemporary and sustainable WorkCover scheme that can continue to support Victorian workers in the future.
This information focuses on the new requirement that a mental injury predominantly arose out of or in the course of employment to be eligible for compensation under the WorkCover scheme.
In the past, the eligibility test for a new primary mental injury was whether it arose out of or in the course of employment. The question to be answered was whether the mental injury was a reaction to an event at work irrespective of other contributing factors.
Where the primary mental injury was a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing mental injury, the test was whether employment was a significant contributing factor.
Under the changes, the new eligibility test for primary mental injuries is whether the mental injury predominantly arose out of or in the course of employment.
The same test also applies where the primary mental injury is a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing mental injury.
Under the new test, employment must be the strongest or largest contributing cause of the mental injury. In this context, employment means the work event or circumstances claimed by the worker as the cause of injury (the claimed event), as recorded by the worker in the claim form.
The new test only applies to primary mental injuries sustained on or after 31 March 2024. It does not apply to:
As an IME, you will be asked to provide your independent clinical opinion on whether employment is the predominant cause of a worker's mental injury.
Predominance may be proven by establishing that the contribution of employment is greater than the sum of all other contributing factors including personal, financial or other matters. Employment will be the predominant cause when it is the strongest or largest cause of injury when measured against all other factors combined.
The evaluation of predominance is not carried out in a specific technical or formal way. It is done by applying common sense to the facts of the particular case.
As an IME you do not have delegation to make decisions under the Workplace Injury Rehabilitation and Compensation Act 2013.
The role of an IME is to provide a quality, evidenced based clinical report, that allows readers to understand the basis upon which you have formed your opinion, and helps inform robust Agent decision making.
The WorkCover scheme was designed in 1985 to primarily deal with physical injuries. As such, the claims eligibility and assessment measures were better aligned to physical injuries.
The introduction of predominance in determining mental injury claim eligibility recognises that mental injuries are complex and often the cumulative impact of several factors.
The purpose of this change is to strengthen the link between employment and mental injuries that are compensable under the WorkCover scheme.
In considering predominance, you are being asked to form an opinion on whether employment is the strongest or largest contributing cause of the worker’s mental injury. To form an opinion on this, you will need to establish if there are other factors contributing to the worker’s mental injury. This can be established through consideration of:
If other possible contributing factors are identified, you will need to weigh up each factor. This will help you to determine if the employment contribution is greater than all other factors combined. In doing this, you might consider:
After weighing up the impact of other factors against the impact of the claimed event, you must then record your opinion on predominance in your report:
After weighing up the impact of the claimed event against all other factors combined, employment is considered the strongest or largest contributing cause of the worker's mental injury.
This may occur if there is not enough information to feel confident in your understanding of the worker's pre-existing or current condition.
After weighing the impact of the claimed event against all other factors, the claimed event is not the strongest or largest contributing factor to the worker's mental injury.
A worker submits a claim for compensation. The Certificate of Capacity is completed by their general practitioner and outlines that:
The accompanying medical reports and information provided by the worker detail that the worker’s marriage broke down 6 months ago. The worker is struggling with managing the legal processes associated with the marriage breakdown while working and raising young children. The worker has lodged a claim for compensation due to bullying, stating a colleague has made repeated comments about their lack of commitment and work ethic over the last six months. The employer has confirmed these comments were made and the workers attended mediation to resolve the issue. The medical report notes these comments were upsetting to the worker and the worker had stated they only added to a terrible situation in which the worker was already struggling.
In this scenario the information provided by the treating practitioner details several causes for the worker's diagnosis including:
In this instance, the IME must determine whether the bullying experienced by the worker is the strongest or largest contributing factor relative to all other contributing factors combined, including marriage breakdown, the stress of managing the legal proceedings and balancing work and family commitments.
The IME reviews the information provided in the medical reports and clinical records and takes a history from the worker. The IME considers the worker’s history of symptoms and treatment, the frequency of attendance with doctors, and the extent to which that increased following the bullying. After considering all possible causes for the worker’s injury, the IME determines that the contribution of employment is less than the combined contribution of the other factors. In their report, the IME records their opinion that the mental injury did not predominantly arise out of or in the course of employment.
A worker submits a claim for compensation. The Certificate of Capacity is completed by their general practitioner and outlines:
The IME is provided with medical reports and information showing the worker has a pre-existing diagnosis of borderline personality disorder. Over the course of their life this has led to depression, impulsiveness, aggression and anxiety. During their assessment, the worker tells the IME they do not have any support from family or friends. They also disclose that they are a regular gambler and are struggling to pay their bills. When asked to explain the work event that led to their claim, they say a new colleague joined their team and used their mug which was in the shared kitchen. The worker describes this as deliberate action designed to torment them and that the work environment is toxic. The IME has been provided with a statement from the colleague that they unknowingly used the worker’s mug and immediately apologised when they realised.
In this scenario the information provided to the IME and gathered from their assessment show the worker:
In this instance the IME must consider if a colleague using the worker's mug and the resulting distress is the strongest or largest contributing factor relative to all other contributing factors combined, including their pre-existing mental health condition, financial and relationship stress.
The IME reviews the information provided and gathered from their assessment. The IME considers the worker's pre-existing borderline personality disorder and the impact of this on their personal life. They conclude that that the worker's mental injury did not predominantly arise out of or in the course of employment.
A worker submits a claim for compensation. The Certificate of Capacity is completed by their general practitioner and outlines:
The worker is a secondary school teacher. They have submitted a claim for compensation following significant physical threats from a student with a history of violence.
The IME is provided with medical reports and information showing that the worker was diagnosed with reactive depression after the sudden death of their son 4 years ago. At the time of their son's death the worker took 2 weeks off work. They attended a psychologist for 12 months and have remained on a low dose anti-depressant since this time. The worker's attendance at work and regular activities have not been impacted by their depression over the past 36 months.
In this scenario the information provided to the IME show the worker:
In this instance the IME must consider if the workplace incident is the strongest or largest contributing factor for the aggravation of the worker's pre-existing condition.
Noting the information provided in the medical reports and having consideration to all the contributing factors that have resulted in the worker's mental injury, the IME determines the aggravation of the worker's mental injury predominantly arose out of or in the course of employment.
Workers can access provisional payments for reasonable treatment and services for work-related mental injuries, while they await the outcome of their claim. When claims are rejected, workers can continue to receive provisional payments for up to 13 weeks.