2.1.2 Mental injuries - entitlements and exceptions

2.1.2.1 Mental injuries

For mental injuries sustained on or after 31 March 2024, the following applies in addition to other relevant eligibility criteria within the Act:

The primary or secondary mental injury meets the new mental injury definition because it:
- has been diagnosed by a medical practitioner in accordance with the most recent Diagnostic and Statistical Manual of Mental Disorders (DSM); and
- causes significant behavioural, cognitive or psychological dysfunction;
For primary mental injuries only:
- it meets the new mental injury definition (as above);
- it has predominantly arisen out of or in the course of the worker’s employment – see 2.1.6.10 Predominant cause (for primary mental injuries only; and
- it has not been predominantly caused by stress or burnout (other than in the context of traumatic events) – see 2.1.2.3 Stress, burnout and traumatic events.

Section 39(1), i.e. not arising out of or in the course of employment; and section 40(3), i.e. employment not being a significant contributing factor to any aggravation; – do not apply to mental injury claims with a date of injury on or after 31 March 2024.

Instead, the following sections apply:

Section 39(1A), i.e. not predominantly arising out of or in the course of employment;
40(2A) i.e. that employment is not the predominant cause of the aggravation etc.

Section 39(1A), i.e. not predominantly arising, can be relied on when rejecting a mental injury sustained on or after 31 March 2024 where:

the worker’s version of events has not been corroborated, even when the IME Independent Medical Examiner / Independent Medical Examination has stated that the injury has been predominantly caused by employment. Although the IME’s opinion will be based on an event or circumstances described by the worker, there might be evidence based on which an Agent can refute the claimed event or circumstances.
the IME has stated that the injury has not predominantly arisen out of on in the course of employment.

For mental injuries sustained before 31 March 2024, the causation tests are:

Section 39(1) – the injury must arise out of or in the course of employment;
Section 40(3)(c) – there is no entitlement unless employment was a significant contributing factor (SCF Significant Contributing Factor) to any recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury

(Other entitlement criteria also apply in accordance with the legislation.)

Secondary mental injuries

Where a secondary mental injury sustained on or after 31 March 2024 meets the new mental injury definition, it must still meet the longstanding causation test– namely, that it is has resulted from or been materially contributed to by a compensable primary injury (usually an accepted physical injury).

These criteria also apply to any aggravation of pre-existing mental injuries that are secondary to a primary injury.

See: 4.5.39.1 Treatment for physical injury claims

2.1.2.2 Establishing the date of injury for primary mental injury claims

A specific date of injury may need to be established for the purposes of determining whether an injury was sustained on or after 31 March 2024.

Where a single identifiable traumatic incident (e.g. exposure to crime scene event) – the Agent should accept the date of the exposure as the DOI Date of Injury.

Where a worker claims a mental injury has occurred or developed over time, or the evidence obtained by the Agent does not support the date of injury indicated in the worker’s claim form, the date of injury should be determined by reference to the available evidence. The most reliable evidence will be clinical records and contemporaneous reports from treating health practitioners.

As a guide, where the mental injury claim relates to circumstances over a period of time rather than a discrete event, Agents should take the date of injury as being the earlier of:

date first certified as having no or reduced capacity for work as a result of the specific incident or circumstances which the worker has indicated to be the cause of the mental injury;
date the worker first obtained treatment for the specific incident or circumstances which the worker has indicated to be the cause of the mental injury – this includes where medication has been prescribed, a referral made for specialist treatment, or a diagnosis made;
date first reported to the employer
date claim lodged by the worker.

2.1.2.3 Stress, burnout and traumatic events

Note: This section applies only to injuries sustained on or after 31 March 2024

There is no entitlement to compensation in respect of an injury to a worker predominantly caused by stress or burnout that arose from events that may be considered usual or typical and expected to occur in the course of the workers duties.

This exclusion does not apply where those usual or typical events are traumatic events (for instance, in the case of first responders).

See 2.1.6.10 Predominant cause (for mental injuries only)

2.1.2.4 Management Action

There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one or more of the following:

management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker’s employer
a decision of the worker’s employer, on reasonable grounds, to take or not to take any management action
any expectation by the worker that any management action would, or would not, be taken or a decision made to take or not to take, any management action

Meaning of wholly

Management action needs to be the whole and only cause of the injury.

Meaning of predominantly

Management action can be the predominant cause where other causes contribute to the injury but the management action is still the predominant cause. To be the predominant cause, the management action must exceed the other or all other causes combined in power and influence.

Whether management action is the predominant cause of the injury where multiple causes exist will depend on an evaluation of the proportionate contribution made to the injury by management action on the one hand and the other cause or causes on the other. This evaluation is not carried out in any technical or formal way but by applying common sense to the facts of the particular case.

Meaning of reasonable grounds

Determining whether management action has been undertaken on reasonable grounds requires an objective assessment of the action in the context of the circumstances including:

the circumstances that led to and created the need for the management action to be taken
the circumstances while the management action was being taken, and
the consequences that flowed from the management action.

Meaning of reasonable manner

Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.

To be considered reasonable, the action must be lawful and must not be ‘irrational, absurd or ridiculous’.

Any unreasonableness must arise from the actual management action in question, rather than the worker’s perception of it.

In determining whether the grounds and/or manner of the employer is reasonable or not, regard must be had to the provisions of the employees relevant industrial instrument eg: Award or Enterprise Agreement.

Examples of management actions

Management action includes but is not limited to, any one or more of the following:

appraisal of the worker’s performance
counselling of the worker
suspension or stand-down of a worker’s employment
disciplinary action taken in respect of the worker’s employment
transfer of the worker’s employment
demotion, redeployment or retrenchment of the worker
dismissal of the worker
promotion of the worker
reclassification of the worker’s employment position
provision of leave of absence to the worker
provision to the worker of a benefit connected with the worker’s employment
training a worker in respect of the worker’s employment
investigation by the worker’s employer of any alleged misconduct:
of the worker or
of any other person relating to the employer’s workforce in which the worker was involved or to which the worker was a witness
communication in connection with an action mentioned in any of the above paragraphs.

An application under the Local Government Act 1989 (LG Act) or proceedings as a result of that application, in relation to the conduct of a worker who is a Councillor. The LG Act allows an individual Councillor, a group of Councillors or a Council to apply to a Councillor Conduct Panel (established under the LG Act) to make a finding of misconduct against a particular Councillor or to authorise an application under VCAT Victorian Civil Administrative Tribunal for a finding of serious misconduct against that Councillor.

LGA s81B

Note: The LG Act allows an individual Councillor, a group of Councillors or a Council to apply to a Councillor Conduct Panel (established under the LG Act) to make a finding of misconduct against a particular Councillor or to authorise an application under VCAT for a finding of serious misconduct against that Councillor.

AC s82

WIRC s40

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