Disputing claims

If an insurer disputes any aspect of a claim, it must give notice of the dispute to the worker under section 74 of the 1998 Act. A section 74 notice is not required if a section 54 notice (required before terminating or reducing payment of weekly compensation) which includes the information required by section 74, has been issued to the worker.

Before issuing a section 74 notice an insurer must carry out an internal review of the decision to dispute liability

in respect of the claim or an aspect of the claim. The internal review must consider all the evidence relevant to the claim or to the aspect of the claim to which the decision relates. The review must be conducted by someone other than

the person who made the original decision and who has the requisite experience (e.g. a technical adviser or a senior claims supervisor).

Formal requirements for section 74 notice

After the internal review is conducted, if a decision is made to dispute the claim, clause 38 of the Regulation requires the section 74 notice given to the worker to be written in plain language and must include:

• • a statement of the matters in dispute. This includes details of the specific nature of the claim or aspect of the claim that is in dispute, the decision made and the basis for the decision.
  • a statement indicating that the matters that may be referred to the Commission are limited to matters notified in the dispute notice or in a dispute review notice (discussed below).
  • reasons the insurer disputes liability, including reference to those parts of the workers compensation legislation and regulations that the insurer relies on (refer to page 75 for a list of most common legislative sections relied on).
  • a statement of the issues that are relevant to the matters in dispute
  • a statement listing all reports (by author name, author qualification and date of report) and documents relevant to the claim or aspect of the claim to which the decision relates, including reports and documents that do not support the decision reached but are still relevant, including, but not limited to:
  • medical reports, certificates and clinical notes
  • treatment plans
  • factual/investigation reports
  • rehabilitation reports
  • earning capacity assessment reports
  • other relevant reports.
  • a statement identifying the reports and documents submitted by the worker in making the claim. The worker will be limited to this information in any application for dispute resolution lodged with the Commission, unless the worker was not legally represented at the relevant time or where additional information is provided in a request for review.
  • a statement identifying that all reports and documents relevant to the decision to dispute the claim and which are in the possession of the insurer are attached to the dispute notice. However, a relevant report does not have to be attached where it has already been supplied to the worker (provided it is identified in the statement). If supplying the worker with a copy would pose a serious threat to the life or health of a worker or any other person in which case the insurer may instead provide the report to the worker’s doctor, his lawyer, or if neither of these is appropriate, seek a direction from SIRA.
• if the dispute is eventually referred to the Commission, both parties can only rely on reports and documents identified in the dispute notice or dispute review notice (discussed below) except in the case of a worker who is not represented by a solicitor.
  • a statement indicating that the worker can request a review of the claim by the insurer (internal review). The notice must describe the procedure for requesting a review and indicate that the worker may raise further issues and introduce further supporting evidence when seeking the review. The notice must also advise the worker that this extra information must be provided if the worker is to include it in any application for dispute resolution referred to the Commission. A standard form for requesting the review must be attached to the dispute notice.
• a statement that the worker may:
• contact the SIRA Customer Service Centre on 13 10 50
• seek assistance from their trade union or a lawyer
• contact the Workers Compensation Independent Review Office (WIRO) on 13 94 76
• refer the dispute to the Workers Compensation Commission.

A failure to comply with section 74 is an offence punishable by a maximum penalty of 20 units (i.e. $2,200): Regulation 2016 clause 38(2).

Insurers review

As well as being required to conduct an in-house review before making the decision to dispute liability, section 287A provides that a worker can ask an insurer to review a claim at any time after the insurer has disputed the claim but before the dispute is referred to the Registrar for determination by the Commission. (See also pages 55-56 of this Guide.)

On receiving the request for review, the insurer must review the claim within 14 days. The review must be conducted by someone other than the person who made the original decision and by someone with the requisite expertise. On review the insurer can either accept the claim, or if it decides to maintain the dispute in respect of the claim or any aspect of the claim, it must give notice of the dispute to the worker. The notice must contain the same information as a section 74 notice.

As the Commission is restricted to considering only those issues raised in correspondence prior to the commencement of proceedings, it is very important that the original dispute notice and any subsequent dispute notice issued after a worker’s request for a review provides specific information regarding the reasons and basis for the dispute, and that it responds to all allegations and claims contained in the notice of claim.

If an insurer fails to identify relevant issues or fails to respond to all allegations or claims made, it may be prevented from raising those issues or disputing those allegations or claims in any subsequent proceedings in the Commission.