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Findings and recommendations on merit review 001/17

Date of Review: 121 February 2017

Our Reference: 001/17

Findings on Review

  1. The following finding is made by the State Insurance Regulatory Authority (“the Authority”) on review and is to be the basis for the Insurer’s work capacity decision.
  2. The worker’s entitlement to weekly payments of compensation falls in the “second entitlement period” as defined by 32A of the Workers Compensation Act 1987 (the 1987 Act).

Recommendations Based on Findings

  1. Under section 44BB(3)(e) of the 1987 Act, the Authority may make binding recommendations to the Insurer based on its findings on review.
  2. No recommendation is made for the reasons below.

Background

  1. The worker was injured on 4 March 2016 whilst working for her pre‐injury employer (the employer). A claim for compensation was made.
  2. The Insurer made a work capacity decision on 2 November 2016. The Insurer decided that the worker’s claim for compensation fell within the second entitlement period, on the basis that as at 15 October 2016 a total of 32 weeks of compensation payments were paid to her.
  3. The worker applied for an internal review of the Insurer’s work capacity decision. The Insurer conducted an internal review and confirmed that the worker’s claim for compensation fell within the second entitlement period. This decision was provided to the worker in a document dated 23 December 2016.
  4. The worker then made an application for merit review by the Authority. The application was received by the Authority on 17 January 2017. The application has been made within 30 days after the worker received notice of the internal review, as required under section 44BB(3)(a) of the 1987 Act. The application has been lodged in the form approved by the Authority.

Legislation

  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 2016 (“the Regulation”);
  2. Section 43 of the 1987 Act describes 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.

Documents Considered

  1. The documents I have considered in this review are those listed in, and attached to, the application for merit review, the Insurer’s reply and any further information provided by the parties.
  2. I am satisfied that both parties have had the opportunity to respond to the other party’s submissions and that the information provided has been exchanged between the parties.

Submissions

  1. In the application for merit review, the worker makes the following submissions:
    • The worker does not question her assessment of work capacity but rather the determination of the entitlement period in which her claim falls within.
    • The Insurer states that as at 19 November 2016 a total of 37 weekly compensation payments have been made in accordance with this workers compensation claim.
    • The worker advises this is manifestly incorrect. The worker has not been paid weekly compensation in relation to this claim at any stage during her time off.
    • The worker instructs that for a period of 8 months from the date of the injury, 4 March 2016, to the work capacity decision date, she has not been in receipt of any weekly compensation payments.
    • To verify that she was not in receipt of any workers compensation payment but rather in receipt of annual and sick leave entitlements, she encloses a copy of her payslips from the financial years 2015, 2016 to date.
  2. In reply, the Insurer makes the following submissions:
    • The Insurer can confirm that the worker is currently in the second entitlement period and can confirm that weekly compensation payments have been made directly to the Employer.

Reasons

Nature of merit review and Jurisdiction

  1. This matter involves a merit review of the Insurer’s work capacity decision in accordance with section 44BB(1)(b) of the 1987 Act.
  2. The review is not a review of the Insurer’s processes in making the work capacity decision and/or the internal review decision.
  3. The review requires that I consider all of the information before me substantively on its merits and make findings and recommendations that, in light of the information before me, are most correct and preferable.
  4. It is only those decisions of the Insurer that the worker refers for review by the Authority, in accordance with section 44BB of the 1987 Act, that the Authority has jurisdiction to review.
  5. In her application for merit review, the worker has sought review of the Insurer’s decision about the entitlement period within which her claim for weekly payments of compensation falls.
  6. This is a decision of the Insurer that falls under section 43(1)(f) of the 1987 Act, and is therefore amenable to review by the Authority under section 44BB of the 1987 Act.

Entitlement periods for ongoing weekly payments

  1. The following provisions of the 1987 Act provide the basis for determination and calculation of a worker’s weekly payments of compensation:
    • Weekly payments in the first 13 weeks are to be determined in accordance with section 36 of the 1987 Act (“the first entitlement period”);
    • Weekly payments in weeks 14–130 are to be determined in accordance with section 37 of the 1987 Act (“the second entitlement period”); and
    • Weekly payments after the second entitlement period (after week 130) are to be determined in accordance with subsections 38(6) or (7), but only if the special requirements for continuation of weekly payments after the second entitlement period are met in accordance with section 38 of the 1987 Act.
  2. The “first entitlement period” is defined in section 32A of the 1987 Act as follows: 
    • first entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.
  3. The “second entitlement period” is defined in section 32A of the 1987 Act as follows:
    • second entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.
  4. As may be seen from these definitions, the relevant entitlement period relates to a “claim for compensation”, is an aggregate period whether or not consecutive, and applies “in respect of which a weekly payment has been paid or is payable to the worker”.
  5. It should be therefore noted that weeks will be counted toward the relevant entitlement period even if the worker has not been “paid” such payments, but where a weekly payment is “payable” to a worker.
  6. This might include for example, where the worker has a legal entitlement to be paid weekly payments of compensation because the Insurer has accepted liability for weekly payments of compensation, but such payments have not yet been made.
  7. It is also important to note that it an Employer who bears the liability to pay weekly compensation payments to a worker.
  8. In this regard, section 33 of the 1987 Act provides that:
    • If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity (emphasis added).
  9. Section 69(1)(c) of the 1998 Act confirms that where an employer has received compensation money under the Act from the Insurer, it must as “soon as practicable, pay the money to the person entitled to the compensation”.
  10. Further section 84 of the 1987 Act provides that a weekly payment of compensation is payable:
    • at the employer’s usual times of payment of wages to the worker,
    • at fortnightly or other shorter intervals, or
    • at such other intervals as are agreed on between the employer and the worker.
  11. As may be seen from these provisions, it is ultimately the Employer’s legal responsibility to pay weekly payments of compensation to a worker.
  12. In this matter, the Insurer has provided a list of payments it has made, in relation to the claim to which the worker has referred in her application for merit review.
  13. It demonstrates that 32 weeks of weekly compensation payments have been made to the Employer and to the worker in respect of the claim.
  14. It appears to me that the Insurer gave compensation money to the Employer in respect of the first 7 weeks of payments, but this was not drawn until 6 May 2016. Then, on 20 October 2016, the Insurer drew weekly payments beyond the 13 week aggregate period. It then drew further weekly payments on 23 November 2016 and 9 January 2017. On 31 January 2017, the Insurer drew payments for further weekly payments and it appears that payments were made by check directly to the worker.
  15. The fact that the Insurer drew payments at a later time, or paid those payments directly to the Employer and not the worker does not alter the relevant entitlement period that applies. Even if the worker was not paid weekly compensation payments (or what she considered to be weekly compensation payments) does not alter this. A weekly payment of compensation was payable to her in those weeks.
  16. The Insurer accepted liability for the claim, and the Employer had a legal liability to make weekly payments of compensation to her. As a result a weekly payment was “payable” to the
  17. worker in respect of these weeks of compensation and such weeks must be counted toward the “aggregate period” as defined in section 32A of the 1987 Act.
  18. The Insurer has provided a “list of payments” which demonstrates that payments were made to the Employer (even if at a later point in time), for weekly payments paid by the Employer to the worker in accordance with its liability to do so under section 33. However, even if the Employer did not do so or the payments were characterised differently by the Employer or the worker, the weekly compensation payments are “payable” to the worker and she was entitled to such payments under the legislation.
  19. Further, I note the following. The worker has referred to her payslips in support of her application for merit review and states that she was in receipt of annual and sick leave entitlements.
  20. However, there are payslips before me of the Employer for the pay periods between the 29 February 2016 to 13 November 2016. Copies have been provided to the worker.
  21. These payslips indicate that during the period of incapacity, she was paid a component of her pay described as “W/COMP” and “WCMAV” by the Employer. In the pay period for 25 July 2016 to 31 July 2016, she was paid $9069.25 for “WCMAV”. It is not clear to me that these amounts relate to the claim for compensation in respect of which the Insurer has provided a list of payments. But it does appear to me that she was paid some type of workers compensation component during this time.
  22. However, regardless, the Insurer having accepted liability for weekly payments of compensation in relation to her claim for compensation, there were weekly payments of compensation payable to the worker during the period of incapacity, and if such amounts were not paid, they are “payable” to her.
  23. For the reasons given above, I accept the Insurer’s position that the worker’s entitlement to weekly payments of compensation falls in the second entitlement period and find accordingly.
  24. As I have reached the same conclusion as the Insurer, there is no need to make a recommendation (which I note is a matter of discretion for the Authority).