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Findings and recommendations on merit review 003/16

Our reference: 003/16

Decision

  1. The worker’s application for merit review was not made within 30 days after she received notice in the form approved by the Authority of the Insurer’s decision on internal review.
  2. The application for merit review was not made in accordance with section 44BB(3)(a) of the Workers Compensation Act 1987 (the 1987 Act).
  3. The Authority does not have jurisdiction to undertake a review of the work capacity decision dated 25 February 2016.

Background

  1. On 25 February 2016, the Insurer made a work capacity decision. It determined that the worker’s entitlement to weekly payments would cease based on a calculation pursuant to Section 37 of the 1987 Act which highlighted that she was working more than 15 hours per week and was “able to earn up to $X per week in suitable employment”.
  2. The worker made an application for internal review dated 23 March 2016.
  3. On 29 April 2016, the Insurer conducted an internal review and confirmed the decision that “the work capacity decision advised by notice dated 25/02/16 is [sic] remains in place”.
  4. The worker made an application for merit review by the Authority dated 7 June 2016 which was received by the Authority on 9 June 2016. The application has been made in the form approved by the Authority and specifies the grounds on which the review is sought.

Legislation and Guidelines

  1. The legislative framework governing work capacity decisions and reviews is contained in the:
    • Workers Compensation Act 1987 (the 1987 Act);
    • Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
    • Workers Compensation Regulation 2010 (the Regulation);
    • Guidelines for work capacity decision Internal Reviews by Insurers and Merit Reviews by the Authority applicable from 11 October 2013 (the Review Guidelines); and the
    • WorkCover Work Capacity Guidelines as amended (the Work Capacity Guidelines).
  2. Section 43 of the 1987 Act defines a “work capacity decision”.
  3. Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.

Submissions on Juristiction

  1. In the application for merit review, the worker submits:
    • She received the internal review decision on 2 May 2016.
  2. In the reply, the Insurer submits:
    • The work capacity decision is dated 25 February 2016. The application for internal review by the Insurer was lodged on 31 March 2016. The internal review decision is dated 29 April 2016.

Reasons

  1. Section 44BB(3)(a) of the 1987 Act provides:
    • an application for review must be made within 30 days after the worker receives notice in the form approved by the Authority of the insurer’s decision on internal review of the decision (when the application is for review by the Authority) or the Authority’s decision on a review (when the application is for review by the Independent Review Officer).
  2. No submissions regarding the Authority’s jurisdiction to review this matter were provided by the worker or the Insurer.
  3. The Insurer conducted an internal review on 29 April 2016, and sent notice of that decision to the worker in the form approved by the Authority by post.
  4. The worker has specified in the application for merit review that she received the Insurer’s internal review decision on 2 May 2016, being two working days after the date that the Insurer sent notice of the internal review decision.
  5. In this matter, I accept the worker’s submission that she received the internal review decision on 2 May 2016.
  6. However the worker’s application for merit review was made on 9 June 2016, being the date on which the Authority received the application.
  7. Thus the application for merit review was not made within 30 days after the worker received notice of the Insurer’s internal review decision in the form approved by the Authority.
  8. As outlined above, the Authority is subject to strict legislative requirements with respect to its jurisdiction in order to accept an application for merit review, particularly in matters relating to time limits.
  9. Accordingly, as the application for merit review was not made in accordance with section 44BB(3)(a) of the 1987 Act, the Authority does not have