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 all other existing 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 2.1.6.5 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.

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 aggravations of pre-existing mental injuries.

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, Agents should use the date of injury for gradual process injuries, as 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 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 2.1.6.5 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.

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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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