On 31 March 2024, subsequent to the writing of this article, significant amendments to the WorkCover legislation in Victoria were introduced.

Under the new legislation, a worker will not be entitled to WorkCover compensation if their mental injury is predominantly caused by work related stress or burnout resulting from events that are considered typical or reasonably expected in the worker's duties.

Whilst stress and burnout are not defined and are intended to take their ordinary meaning, the Explanatory Memorandum provides examples including “typical job demands, workload pressures and interpersonal interactions.” Bullying, harassment and discrimination are not captured by this exclusion as these behaviours are not considered typical or reasonably expected to occur.

Stress or burnout injuries constitute a significant portion of current WorkCover mental injury claims. This exclusion will now disentitle workers to compensation for mental injury resulting from stress and burnout in the future.

Provisional payments for reasonable medical services are still payable for mental injury claims, irrespective of whether the worker meets the new eligibility tests. This means that workers who lodge a WorkCover claim for a mental injury may be able to receive up to 13 consecutive weeks of reasonable medical treatment for their claimed injury.

For detailed information regarding the WorkCover amendments, please refer to Changes to WorkCover laws by the Workplace Injury Rehabilitation and Compensation Modernisation Act 2023.

Work-related stress claims are on the rise, and those affected are increasingly seeking compensation to assist with the costs associated with recovery.

Your employer's insurer, WorkCover, provides compensation to injured employees on a no-fault basis in the form of weekly payments, medical and like expenses and potentially a lump sum payment for any permanent serious impairment.

Claims for injured employees with a stress injury can be difficult, and there are some hoops you should be aware of:

Reasonable management action

Central to stress compensation claims is whether or not your manager behaved in a'reasonable' way when discussing your performance or making changes to your employment. These discussions include: disciplinary action, potential termination, refusal to provide a promotion, pay rise or requested leave, alterations to your role and/or the need for increased performance.

If your manager was found to have behaved reasonably, but your mental health injury was predominantly caused by other work related factors, you still may have an entitlement to compensation.

Pre-existing injury or illness

If you have a pre-existing stress related injury prior to commencing employment and then later your condition becomes aggravated or you develop a new stress condition, then this will be a factor towards how your claim is managed.

Bullying and harassment

To claim for a bullying injury, we need to provide specific examples of repeated negative behaviour that put your health and safety at risk, preferably with witnesses and/or statements.

If you are experiencing stress because of the behaviour by a co-worker, it may be better to avoid the term bullying on the claim form.

Before submitting your claim call us for free assistance with completing your WorkCover claim form on (03) 9321 9988.

Types of compensation claims

Permanent impairment claim

If you have a permanent stress related injury, you may be entitled to a lump sum payment of compensation. To be eligible, an assessment by an independent medical examiner must show that you have a whole person impairment of 30%.

Unfortunately this assessment level is very difficult to achieve for most people as it requires very severe ongoing consequences and often high doses of psychotropic medications and hospital inpatient admissions.

Common Law

If you are determined to have a permanent and'serious injury', you may be eligible to sue under common law for pain and suffering damages and possibly economic loss as well. A claim must be made within 6 years from the date of injury.

With a psychiatric injury, establishing negligence can be very challenging. Just because you suffer from a psychiatric injury and have an accepted WorkCover claim, your employer has not admitted negligence.

To succeed with a bullying case we must establish:

• You were subjected to repeated unreasonable behaviour that was likely to cause mental harm.
• The employer knew or should have known that the behaviour directed towards you was occurring and likely to cause psychiatric harm.

To succeed with a stress claim (increased work-load or pressure) we must establish:

• You were aware that your mental health was deteriorating as a result of work.
• You advised your employer that you are suffering from a psychiatric illness as a result of the work; or
• Your typical behaviours had changed to such an extent that it would be reasonable to say your employer would have noticed you were suffering from mental health concerns due to work.
• Once your employer is on notice regarding your psychiatric illness, they would then be negligent if they failed to take steps which could prevent further harm from developing.

Sadly, many workers are either not aware that they are suffering from mental decline until they actually have a breakdown of some sort, or else they are too scared to advise their employer about their condition. But in negligence, if an employer does not know that there is a problem, then how can they be expected to fix it?

For free advice regarding your circumstances, call a lawyer directly on (03) 9321 9988.