Practice directive – Mental injury eligibility

Background

This practice directive provides guidance for medical practitioners, independent medical examiners and independent impairment assessors. It may also be useful for employers and workers. It applies to mental injuries that have occurred on or after 31 March 2024.

The Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2023 (Scheme Modernisation Act) made a range of amendments to the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) and Accident Compensation Act 1985. These amendments came into effect on 31 March 2024 and include introducing:

• a new definition of mental injury that means mental injuries are only compensable if they:
  • cause significant behavioural, cognitive or psychological dysfunction, and
  • are diagnosed by a medical practitioner in accordance with the latest version of the Diagnostic and Statistical Manual of Mental Disorders (DSM)
• a requirement for mental injuries to predominantly arise out of or in the course of employment
• a new exclusion to compensation for mental injuries that are predominantly caused by work-related stress or burnout arising from events that may be considered usual or typical and are reasonably expected to occur in the course of the worker's duties
• an exception to the new stress and burn out exclusion. Where a worker's duties are usually or typically traumatic, mental injuries predominantly caused by work-related stress or burnout as a result of traumatic events remain compensable.

Note: This practice directive includes information on determining entitlement to compensation for a mental injury once it has been determined that the person has met other relevant eligibility requirements (such as being a worker) for the purposes of the WIRC Act, and when it has been determined that a worker’s injury is a mental injury.

Definition of a mental injury

Section 3 of the WIRC Act defines mental injury as an injury that:

• causes significant behavioural, cognitive or psychological dysfunction and
• is diagnosed by a medical practitioner in accordance with the most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM)

Both of these elements are required to meet the definition of a mental injury under the WIRC Act.

Note: The DSM is used to diagnose mental disorders and for the purposes of the WIRC Act the disorder is considered to be the injury.

Significant behavioural, cognitive or psychological dysfunction

Where a worker has a mental injury, the medical practitioner must make an assessment of whether the injury causes significant behavioural, cognitive or psychological dysfunction. To be compensable, the injury needs to cause a significant level of interference with the worker's regular functioning. An injury that causes significant behavioural, cognitive or psychological dysfunction is unlikely to be a short-term injury or an injury that does not significantly impair a worker's function. Symptoms that do not result in a diagnosable mental injury because they do not cause significant dysfunction, such as short-term stress response, are not compensable.

Medical practitioners are likely to assess the level of behavioural, cognitive or psychological dysfunction when making a diagnosis in accordance with the DSM.

Meaning of a medical practitioner

The WIRC Act outlines that a medical practitioner is a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student).

This means only a general practitioner or psychiatrist can provide a diagnosis of a mental injury for the purposes of the WIRC Act.

Psychologists cannot provide a diagnosis of a mental injury for the purposes of the WIRC Act.

Determining if a mental injury meets the definition in the WIRC Act

If it is unclear from the medical evidence that the medical practitioner(s) has made a diagnosis in accordance with the DSM and that the worker has significant behavioural, cognitive or psychological dysfunction arising from their mental injury, further information may be sought from the medical practitioner.

In the event the diagnosis has been made by a person who is not a registered medical practitioner for the purposes of the WIRC Act, the worker will be asked to have the Certificate of Capacity completed by their general practitioner or psychiatrist.

Predominantly arose out of or in the course of employment

When determining whether a worker is eligible for compensation in accordance with the WIRC Act, the decision maker will need to determine whether the worker’s mental injury predominantly arose out of or in the course of employment.

'Predominant' is not defined in the WIRC Act and is intended to take its ordinary meaning, referring to the strongest or largest contributing factor relative to all other contributing factors. This means employment must be the single greatest cause of the worker's mental injury, relative to all other non-work causes.

The decision maker will evaluate the contribution of employment to the mental injury and make a determination as to whether the mental injury predominantly arose out of or in the course of employment. This evaluation is not carried out in any technical or formal way but by applying common sense to the facts of the particular case. Decision makers will have regard to existing information including any medical reports, clinical records, circumstance investigation reports and information provided by the worker, as well as any Independent Medical Examiner's (IME) opinion. Where there is any uncertainty about whether the mental injury predominantly arose out of or in the course of employment, further information may be sought from the worker’s medical practitioner or an IME.

Under section 40(2A) of the WIRC Act, the requirement to demonstrate that employment was the predominant cause of the mental injury also applies to claims for compensation relating to mental injuries that are a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.

No entitlement to compensation for a mental injury

The Scheme Modernisation Act introduced section 40(1A) to the WIRC Act which contains a new exclusion to compensation for mental injury claims. It states that a worker is not entitled to compensation if their mental injury was predominantly caused by work-related stress or burnout arising from events that would be considered usual or typical and reasonably expected to occur in the course of the worker's duties.

Stress and burnout as the predominant cause of mental injury – the new exclusion

Work-related stress and burn out are not defined in the WIRC Act and as such, they take their ordinary meaning. For example:

• Work-related stress can be characterised as the physical and psychological response of a worker who perceives that the demands of their work or workplace environment exceed their ability or resources to cope.
• Burnout, in an occupational context, can be characterised as resulting from chronic or ongoing work-related stress that has not been successfully managed.

When a worker submits a claim for mental injury, the decision maker will make an assessment as to whether the worker's mental injury was predominantly caused by work related stress or burnout arising from events that would be considered usual or typical and reasonably expected to occur in the course of the worker's duties.

'Predominant' is not defined in the legislation and is intended to take its ordinary meaning, referring to the strongest or largest contributing factor relative to all other contributing factors.

The decision maker will evaluate the contribution of each potential cause of the mental injury and any assessments made in medical or IME reports. The decision maker will then decide whether the predominant cause of the mental injury is work related stress or burnout arising from events that would be considered usual or typical and reasonably expected to occur in the course of the worker's duties. This evaluation is not carried out in any technical or formal way but by applying common sense to the facts of the particular case. Events that are reasonably expected to occur, or that are usual or typical in the course of all workers' duties include modern work-related stressors that most workers experience during employment, such as workload pressure, in both intensity and duration and work-related interpersonal interactions.

Note: In some circumstances a worker's stress or burn out may be caused by traumatic events and therefore the worker may still be entitled to compensation. See the section Stress and burn out arising from traumatic events that are usual or typical and reasonably expected to occur for further information.

The decision maker will consider the information provided by the worker, employer and any medical practitioners to make an informed decision. Where there is insufficient evidence, the decision maker may seek further information from the worker, treating medical practitioner or request an IME report if appropriate.

Having regard to all the evidence available, the worker is not eligible for compensation if the decision maker determines that the worker's mental injury has been predominantly caused by stress or burnout that has arisen from events that are:

• not traumatic, and
• reasonably expected to occur, or that are usual or typical in the course of a worker's duties

Interpersonal conflicts

Some interpersonal conflicts are reasonably expected to occur in workplaces. However, unreasonable behaviour including bullying, harassment, and discrimination, are not considered to be events that are reasonably expected to occur in the course of a worker’s usual or typical duties and may be considered traumatic.

Mental injuries predominantly caused by events such as bullying, discrimination and harassment will be compensable, subject to other conditions in the WIRC Act being met.

If it is not clear to the decision maker (from the available information) whether or not bullying, harassment or discrimination has occurred, the decision maker may request further information. Where necessary, the decision maker may request further information to substantiate allegations or to confirm certain events have occurred.

Stress and burnout arising from traumatic events that are usual or typical, and reasonably expected to occur

The exception to the stress and burn out exclusion

It is well recognised that exposure to traumatic events can cause stress and burn out, and some workers, such as workers in frontline roles and emergency service functions are regularly exposed to trauma due to the nature of their duties. Section 39(2A) of the WIRC Act is designed to ensure that workers may remain entitled to compensation if their mental injury was predominantly caused by stress and burnout arising from traumatic events that are usual or typical, and reasonably expected to occur as part of their duties (provided the worker satisfies all the additional eligibility criteria).

Note: Where a worker is exposed to trauma, they do not need to demonstrate a diagnosis of post-traumatic stress disorder to satisfy the exception detailed at 39(2A) of the WIRC Act. Any mental injury that causes a significant behavioural, cognitive or psychological dysfunction and has been diagnosed by a medical practitioner in accordance with the most recent version of the DSM may be compensable.

What is a traumatic event?

Traumatic events are events (either a single event or multiple events) that are emotionally shocking and could cause fear and distress. These events would be reasonably expected to cause fear and psychological harm. Traumatic events in the workplace may involve exposure to abuse, bullying, harassment, the threat of harm or actual harm.

People may also experience traumatic events when their role requires them to repeatedly witness or hear details about trauma that other people have lived through. This can include viewing content of traumatic events (such as during an investigation) or working with victims of abuse or others who have suffered trauma.

For the purposes of the WIRC Act, vicarious trauma is likely to be considered a traumatic event.

Fear of a traumatic event occurring is not considered to be a traumatic event. For example: a teacher who is worried they may be abused by a parent of a student (even though no threats or abuse has occurred) has not experienced a traumatic event.

Predominant cause of mental injury - where stress and burn out arises from traumatic events that are usual or typical and reasonably expected to occur

When a worker submits a claim for mental injury, the decision maker will make an assessment as to whether the worker's mental injury was predominantly caused by work related stress or burnout arising from traumatic events that would be considered usual or typical and reasonably expected to occur in the course of the worker's duties. This evaluation is not carried out in any technical or formal way but by applying common sense to the facts of the particular case.

The decision maker will consider the information provided by the worker, employer and any medical practitioners to make an informed decision. In some cases, it may be difficult to obtain information about the traumatic event. This may be due to the nature of the event, the time that has passed since the event occurred, or where there are multiple instances of trauma that have contributed to the event. The decision maker will assess the available information and determine if more information is required, and if so whether this information may be obtained from the worker, the employer or the medical practitioner.

The worker will be eligible for compensation if the decision maker determines the worker's mental injury was predominantly caused by work related stress or burnout arising from traumatic events that would be considered usual or typical and reasonably expected to occur in the course of the worker's duties, provided the worker also satisfies the other conditions in the WIRC Act.

Compensation for traumatic events that are not considered usual or typical and reasonably expected to occur

The exclusion in section 40(1A) of the WIRC Act applies to mental injuries that are predominantly caused by stress or burnout arising from traumatic events that are usual or typical and reasonably expected to occur in the course of the worker's duties. Where a worker's mental injury is predominantly caused by a traumatic event in their workplace that is not usual or typical and reasonably expected to occur in carrying out their duties, this exclusion will not apply and the mental injury claim is likely to be compensable, provided other conditions in the WIRC Act are met.