Victoria's new provisional payments - better support for mental injuries

The Workplace Injury Rehabilitation and Compensation Amendment (Provisional Payments) Act 2021 (Provisional Payments Act) came into effect on 1 July 2021.

Background

From 1 July 2001, Victoria’s eligible workers and volunteers can access early treatment and support while they await the outcome of their claim. This support is called provisional payments.

Eligible workers can access provisional payments for reasonable treatment and services for up to 13 weeks, even if their claim is rejected. This information explains how provisional payments operates.

Overview

What are provisional payments?

Victoria's eligible workers and volunteers 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 and volunteers can continue to receive provisional payments for up to 13 weeks.

How will provisional payments help?

Provisional payments aim to:

  • remove financial barriers that might prevent the worker or volunteer from getting the mental injury support they need
  • reduce the time an injured worker with a mental injury cannot perform their work duties
  • improve return to work outcomes

Who can access provisional payments?

Any eligible worker or volunteer who makes a workers' compensation claim that includes a mental injury will be entitled to provisional payments, unless:

  • there is clear evidence the claimant is not a Victorian worker (all claims are assumed to be valid unless there is evidence to the contrary)
  • the claim is a duplicate of an existing claim
  • the claim is for a physical injury only

Eligible Victorian volunteers are also entitled to provisional payments, subject to the criteria above.

What are the key changes for employers and agents?

The new provisional payments law includes requirements for employers and agents to act faster if a worker or volunteer submits a mental injury claim.

As part of these legislative changes, there have been updates to the Worker's Injury Claim Form to include a Part A and Part B to accommodate the new early notification requirements associated with provisional payments. There have been updates to the Employer Injury Claim Report and the If you are injured at work posters.

Key changes for mental injury claims include:

  • employers must provide early notification of mental injury claims to their agent. Employers must complete and forward the Worker's Injury Claim Form Part A to their agent within three business days of receiving the claim. Agents will determine if the worker is entitled to provisional payments within two business days of receiving the Worker's Injury Claim Form Part A from the employer.
  • employers must complete and forward the Worker's Injury Claim Form Part B to their agent within 10 calendar days. Employers can choose to forward both Part A and Part B together, but must do so within three business days.
  • employers should also complete and forward the Employer Injury Claim Report to their agent within 10 calendar days of receiving the claim
  • if the worker is entitled to provisional payments, the reasonable cost of treatment for their claimed mental injury can be paid. If the worker's claim is accepted, WorkSafe will continue to cover these costs under Victorian workers' compensation legislation.
  • if the worker's claim is rejected, WorkSafe will continue to cover these reasonable costs for up to 13 weeks
  • no employer medical excess is payable where the agent has confirmed the worker is entitled to provisional payments. This applies to claims that include a physical injury in addition to the mental injury, and regardless of whether the claim is accepted or rejected.

Criteria

How does a worker or volunteer access provisional payments?

All workers making a claim for compensation must:

  1. complete a Worker's Injury Claim Form Part A, except for question seven, the employer will complete this question
  2. submit the completed Worker's Injury Claim Form Part A to their employer

From 1 July 2021, provisional payments will be available when the worker is entitled to payments and where the claim is received by:

  • an employer (WorkSafe agent, if lodged directly); or
  • a self-insured employer

What do employers need to do for mental injury claims?

It's important to advise the worker to seek medical treatment and complete an entry for the Register of injuries at the workplace.

Once the employer receives a claim which includes a mental injury, the employer must:

  1. forward the Worker's Injury Claim Form with Part A (early notification) to the agent within three business days of the worker providing it to the employer
  2. employers should confirm with the worker in writing that they've been notified of this claim (employers can do this by giving workers a copy of the Worker's Injury Claim Form after they sign it)

Employers should also keep a copy of all documents for their records.

Once the agent receives Part A of the claim form, they will determine if the worker is entitled to provisional payments.

Entitlement

How will employers know if workers or volunteers are entitled to provisional payments?

The agent will contact employers and workers or volunteers once Part A of the claim form has been received and entitlement to provisional payments has been determined.

What happens to the claim when a worker or volunteer is entitled to provisional payments?

The next step for the agent is to determine whether to accept or reject the claim within 28 days from the date the agent received the claim. The agent will notify the employer and the worker or volunteer of the outcome.

Why does the new legislation focus on mental injuries?

Primary mental injury claims currently take on average 27 days to determine. This is compared to the seven day average to determine physical injury claims.

The extra time needed to determine mental injury claims can result in a longer period where the worker does not have access to reasonable medical and like services.

The new legislation:

  • provides workers the support they need quicker. The faster people get access to services, the more positive the health outcome
  • ensures injured workers can access medical and like services as soon as they need them
  • supports injured workers' recovery and return to work

Why are physical injuries not included for provisional payments?

Mental injuries are likely to deteriorate faster than physical injuries, so it makes sense to help workers get earlier access to the support they need.

What are reasonable costs under provisional payments?

  • payments will only be made on expenses that are considered reasonable and related to the claimed injury
  • section 224 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) provides that if a worker is entitled to compensation, the reasonable costs of medical and like expenses can be claimed by the worker. Examples of compensation provided under this provision include the cost of medication, consultations with General practitioners (GPs), psychologists and psychiatrists and the cost of travelling to treatment and services.
  • the purpose of section 224 of the WIRC Act is to ensure that an injured worker receives fair and equitable compensation for costs they incur as a result of an injury and assist the worker to achieve a safe and sustainable return to work. The definition of reasonable takes into consideration the workers individual circumstances, approved treatment practices and the recommendations of the worker's treating health practitioner.
  • WorkSafe has business rules and a schedule of fees that apply to the making of payments in relation to costs to support an injured worker to return to work. WorkSafe adopts the Medicare Benefits Schedule (MBS) items, explanations, definitions, rules and conditions for services provided by medical practitioners.

Why are rejected mental injury claims supported?

Provisional payments will cover* the worker's or volunteer's reasonable medical and like services for treatment of their mental injury, even if their mental injury claim is rejected. Payments will be provided for up to 13 weeks.

Where the worker's mental injury claim is rejected, we know they are less likely to return to work if they are not seeking necessary treatment and support. It is important to improve return to work outcomes, irrespective of the claim outcome.

*Note: payment of the reasonable costs of treatment does not mean payment of the full costs. There may be a 'gap' between what the provider charges and what is payable under WorkSafe's schedule of fees. Expenses like travel may need pre-approval.

Will an employer determine if a worker has a mental injury?

A mental injury diagnosis is not required to receive provisional payments. This is the responsibility of the agent or self-insurer during the 28-day claim determination process.

The Worker's Injury Claim Form has been updated to include a section for the worker to tick whether they have a mental injury or not. This removes any determination about the injury type for the employer.

Will provisional payments be available where a claim for mental injury has been rejected?

Yes. Regardless of whether the worker's or volunteer's claim is accepted or rejected, they will still have access to up to 13 weeks of provisional payments, where entitled.

The decision on the claim may be reversed if the worker disputes the claim rejection. Providing access to provisional payments during this time ensures the worker can get help to support their recovery.

Penalties

The early notification requirement relates to when the claim includes a mental injury. Employers must complete, sign and forward the Worker's Injury Claim Form Part A (early notification) to their agent within three business days of receiving it from the worker. From 1 January 2022, penalties will apply when employers do not meet early notification requirements.

When penalties commence for not meeting the three business day notification requirement, the same penalty units will be applied for non-compliance as is currently the case under section 73(1) of the WIRC Act. These penalties include 60 penalty units for a natural person or 300 penalty units for a body corporate. There will be no change to the employer liability requirement, as the 10 day period to forward a complete claim still stands.

Self-insurers

What are the requirements for self-insurers?

Self-insurers will have five business days from the receipt of a claim to determine entitlement to provisional payments. This timing is consistent with workers who are employed by organisations that are not self-insurers (see above).

The 28-day determination timeframe will not start until the self-insurer has received all relevant information.

Important: provisional payments will be added into the requirements for the regulatory audit and self-insurer self-audit program (SISAP). Auditing will begin on 1 January 2022. Auditing for self-insurers is aligned with the provisional payments legislative penalties for employers. Penalties will not apply to self-insurers.

Further information

Employers who require further information are encouraged to contact their agent for further details about provisional payments.