Mental injury eligibility – determining if employment is the predominant cause

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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Mental injury eligibility requirements have changed

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.

The previous test

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.

The new test

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:

  • secondary mental injuries resulting from a primary physical injury or
  • primary mental injuries sustained before 31 March 2024

How this change impacts IMEs

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.

The role of the IME

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.

Why this change has been made

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.

Evaluating the predominant cause of mental injury

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:

  • Information provided by the agent, such as GP clinical records and circumstance investigation reports.
  • Information provided by the worker during the assessment, such as:
    • their mental health history
    • details of their personal life
    • details of other work issues separate from the claimed event

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:

  • The worker's description of each possible contributing factor. How has it made them feel? How has it changed the way they cope or function?
  • What was the worker's presentation prior to the claimed injury?
  • How long had any pre-existing conditions remained unchanged?
  • The worker's previous treatment history for mental illness.
  • How has the worker's ability to participate in daily activities changed since the claimed event?
  • Has there been a stepped change in treatment needs or presentation?
  • How different would the worker's presentation and treatment needs be in the absence of the claimed event? Would it be the same or would there be a marked difference?
    • This question should be answered on a 'more likely than not' or 'probably' basis.
    • Has the claimed event created a markedly different clinical picture, or one that is the same?
      • If markedly different, is it more than fleeting?

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:

Example scenarios

Injury did not predominantly arise out of or in the course of employment

Injury predominantly arose out of the course of employment

Mental injury support for workers – Provisional payments

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.

Further information