Responding to claims

Chapter 7 of the 1998 Act and the Guidelines for claiming workers compensation also governs the procedures for making and responding to claims.

Claim served on employer

If a claim form is requested, it will usually be provided by the injured worker to his or her employer, who must forward the claim form to the insurer within 7 days.

An employer must also supply any further information regarding the claim within 7 days of a request by the insurer. An employer is guilty of an offence if there is a failure to supply information: section 264 of the 1998 Act.

Section 274(6) excuses an employer from having to determine a claim if:

    • the employer has duly forwarded the claim to the insurer within 7 days of receipt, and
    • the employer has complied with all reasonable requests by the insurer with respect to the claim.

Claims for weekly payments

Subject to the obligation to make provisional payments within 7 days (unless the insurer has a reasonable excuse)

– considered at page 18 under the heading Provisional Payments – the person on whom the claim for weekly compensation is made must determine the claim within 21 days of the claim being made, by:

    • accepting liability and commencing weekly payments, or
    • disputing liability (and issuing a section 74 dispute notice): section 274(1)

but subject to the exceptions discussed below.

If the claim is made on the insurer it must within 7 days notify the employer that a claim has been made by their worker.

If on receiving the claim the insurer decides to provisionally accept liability, or was already making provisional weekly payments, the time within which the claim must be determined is extended until the end of the period for which liability has been provisionally accepted: sections 274, 275 and 276.

If by the due date for determining the claim the worker has returned to work on pre-injury duties and received payments for the compensation claimed, and is not expected to be entitled to receive any further compensation benefits resulting from the injury, the insurer is not required to determine the claim.

The insurer is also not required to determine the claim if the claim was deficient (e.g. worker has not signed the declaration on the claim form or provided a certificate of capacity), provided that within 7 days of receiving the claim the insurer notified the worker of the deficiency in the claim and how to correct it. However, the insurer must determine the claim within 21 days of the worker correcting the deficiency.

This means that an insurer must determine the claim:

    • before the end of the period for which liability has been provisionally accepted, or
    • within 21 days of the claim being made, whichever happens later.

If the period for which liability has been provisionally accepted ends before the expiration of the 21 day period after the claim is made, the insurer may continue to pay weekly compensation on the basis of provisional acceptance of liability until the end of the 21 day period: section 276(2). Provisional weekly payments could potentially be made for a period up to 105 days (assuming that the insurer had provisionally accepted liability for a 12 week period, the claim form was received on the last day of this period and the insurer decided to continue provisional weekly payments for the 21 day period in which the claim must be determined).

If the insurer does not respond to a claim within the time limits referred to above, the worker can seek assistance from the SIRA Customer Service Centre (CSC) on 13 10 50. CSC will issue the worker with a CSC reference number and contact the insurer to facilitate a response. If the insurer does not respond within 14 days of the referral to CSC, the matter may be referred by the worker to the Workers Compensation Independent Review Office (WIRO) on 13 94 76.

Claims for medical expenses

The person on whom a medical expenses claim is made must determine the claim by accepting or disputing the liability (and giving a section 74 dispute notice) within 21 days of the claim being made: section 279(1).

Section 280(1) provides that an insurer may provisionally accept liability for medical expenses for an amount up to $7,500 or such other amount specified by the SIRA Guidelines.

The acceptance of liability on a provisional basis does not constitute an admission of liability: section 280(2).

If the insurer does not respond to a claim for medical expenses within the time limits referred to above, the worker can seek assistance from SIRA Customer Service Centre on 13 10 50. The CSC will issue the worker with a CSC reference number and contact the insurer to facilitate a response. CSC will then send a letter to the worker within 7 days of the request advising either:

    • the insurer’s response; or
    • that there is still no response.

On receipt of this letter the worker can lodge a dispute with the Commission. The dispute application must quote the CSC reference number and attach the CSC letter.

Claims for permanent impairment compensation or work injury damages

If the claim for permanent impairment is served on the insurer, the insurer must notify the employer within 2 working days that a claim has been made.

If the claim is served on the employer, the employer has 7 days to send the claim to the insurer. Failure to forward the claim to the insurer on time is an offence: section 264.

Section 281 of the 1998 Act provides that the person on whom a claim for lump sum compensation for permanent impairment or work injury damages is made must determine the claim within:

    • 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by an approved medical specialist, or
    • 2 months after the claimant has provided to the insurer all relevant particulars about the claim, as required by the Guidelines, whichever is the later, but subject to the following comments.

The relevant particulars that a worker must provide are set out in section 282. (See page #.)

If the insurer requires the worker to attend an independent medical examination, the worker is not considered to have provided all relevant particulars until the worker has attended that medical examination: section 282(2). The effect of this is that if an insurer makes an appointment for an independent medical examination and advises the worker of the appointment within 2 weeks of the date of the claim, the due date for determining the claim is extended to 2 months after the worker attends the medical examination.

If the insurer considers the claim is deficient because all relevant particulars have not been provided, it should within

2 weeks of the date of the claim notify the worker of the deficiency and how to correct it: section 282(3). When the worker rectifies the deficiency, the insurer has 2 months to determine the claim. If the further particulars are not requested within 2 weeks, the insurer cannot delay determining the claim on the ground that relevant particulars have not been provided: section 282(3).

An insurer cannot delay determining the claim on the ground that the degree of permanent impairment is not fully ascertainable, unless within 2 months of receipt of the notice of claim the insurer has notified the worker that the degree of permanent impairment is not fully ascertainable.

The claim is determined by either:

    • accepting liability and making a reasonable offer of settlement; or
    • disputing liability.

The Guidelines for claiming workers compensation allow the insurer to accept the assessment report provided by the worker, without the insurer having to obtain an impairment assessment. The insurer can agree to pay the claim for permanent impairment compensation as made.

If the insurer obtains a further impairment assessment and decides to make a counter offer rather than accept the worker’s claim, the Guidelines provide that the offer must be in writing and supported by an impairment assessment report.

We understand that where there are 2 or more differing assessments of the level of impairment, an insurer must not submit a compromise settlement offer – the insurer’s offer must be in accordance with one of the available assessments.

The letter containing the counter offer must set out:

    • the date of the injury
    • the injury to which the offer relates
    • the amount of the offer or the extent of pre-existing condition or abnormality, if any
    • the reports and documents relied upon in making the offer
    • the reports and documents served and relied upon by the worker in support of the claim (the worker may be restricted to this information in any subsequent Commission proceedings unless any further information is supplied prior to referral to the Commission)
    • a statement that if the offer is not accepted the worker can refer the dispute to the Commission one month after the offer is made (including the postal and email address of the Commission)
    • a statement that the matters that may be referred to the Commission are limited to matters notified in writing between the parties concerning the offer of settlement.

Copies of the reports and documents that the insurer relied on to make the offer must be attached to the letter, unless supplying the worker with the report would pose a serious threat to the life or health of the worker or to some other person, in which case the insurer can instead supply the report to the worker’s medical practitioner.

If the insurer has obtained a nil impairment assessment, it should send a letter to the worker as required for a counter offer, but instead of stating the amount of an offer, the statement should be that no offer will be made because the injury has not resulted in any degree of permanent impairment.

Claim accepted

Settlement of claims for permanent impairment compensation must be recorded in a complying agreement under section 66A. The form of complying agreement must include the following information:

    • the degree of permanent impairment
    • the medical report(s) relied on to assess the degree of permanent impairment
    • the amount of the compensation payable in respect of the permanent impairment
    • the date of the agreement
    • a certification by the insurer that it is satisfied that the worker has obtained independent legal advice (usually this is done by having the worker’s solicitor confirm that legal advice has been given to the worker).

Claim disputed

If an insurer disputes liability in respect of a claim for permanent impairment compensation, the insurer must issue a section 74 notice which complies with the formal requirements set out in the SIRA Guidelines for claiming workers compensation (discussed below).

A section 74 notice is only required if the insurer is disputing liability (e.g. if it has evidence that the worker did not sustain an injury, or that employment was not a contributing factor to the injury). A section 74 notice is not required where the insurer simply has evidence that there is nil impairment resulting from a compensable injury. In that case, the insurer can simply issue a letter advising the worker that no offer will be made because there is nil impairment. (See the previous comments regarding the form of letter for a counter offer which is to be used.)

When the insurer accepts or disputes liability, it must notify the worker as to whether or not the insurer accepts that the degree of permanent impairment resulting from the injury is sufficient for an award of damages: section 281(2B).

The insurer must include this statement, even if the claim is only for permanent impairment compensation.

If the offer of settlement is made on the basis that only partial liability is accepted, the offer must include sufficient details for the worker to ascertain the extent to which liability is accepted: section 281(4).

These provisions do not apply to a claim for work injury damages in respect of the death of a worker: section 281(6).

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