Our Reference: 026/18
Date of review:
- The application for merit review was not made in accordance with section 44BB(3)(a) of the Workers Compensation Act 1987 (‘the 1987 Act’).
- The Authority does not have jurisdiction to undertake a merit review of the work capacity decision XX June 2016.
- The Worker sustained an injury during the course of their employment with the pre-injury employer. The date of injury in respect of the claim is XXXXXXXX (as indicated in the work capacity decision)
- In correspondence dated June 2016, the Insurer accepted the Worker’s claim for compensation and advised that workers compensation benefits had commenced.
- The Worker made an application for merit review by SIRA dated December 2017 and received by the Authority on December 2017.
- The application specifies the grounds on which the review is sought and has been made in the form approved by the Authority.
Legislation and guidelines
- 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);
- Merit Review User Guide - applicable from 1 August 2016 (‘the User Guide’); and the
- WorkCover Work Capacity Guidelines - as amended (‘the Work Capacity Guidelines’).
- Section 43 of the 1987 Act defines a “work capacity decision”.
- Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the insurer, by the Authority.
Submissions on jurisdiction
- The Worker has not made any submissions with regards to the Authority’s jurisdiction to review their dispute. The Authority has tried to contact the Worker via telephone and email on numerous occasions.
- By way of email correspondence dated January 2018, the Insurer made the following submissions on the issue of jurisdiction:
‘I was unable to locate an Application for Internal Review by Insurer from the Worker as per the requirements of the guidelines’
Internal review decision
- Section 44BB of the 1987 Act provides for reviews of work capacity decisions.
- Pursuant to section 44BB(1)(a) of the 1987 Act, an injured worker may refer a work capacity decision to the Insurer for an internal review.
- Section 44BB(1)(b) of the 1987 Act provides that an injured worker may refer a work capacity decision to the Authority for review “but not until the dispute has been the subject of internal review by the insurer” (emphasis added).
- Section B1.4 of the Guidelines for claiming workers compensation specify that:
A worker can apply to the insurer to perform an internal review of the work capacity decision at any time. The worker must apply for an internal review within 30 days of receiving the work capacity decision advice for a stay of the decision to apply during the internal review process. The application must be made by supplying a completed Work capacity – application for internal review by insurer form to their insurer. (Emphasis added)
- The Authority has jurisdiction to review the merits of an insurer’s work capacity decision once the dispute has had the opportunity to be subject to internal review by the Insurer.
- 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). Emphasis added
- The Insurer has been unable to locate an application for internal review of the work capacity decision which had been completed and submitted by the Worker prior to the lodgement of the application for merit review by the Authority.
- The Authority has been unable to discuss the matter with the Worker despite attempts to contact them.
- The Insurer has supplied email correspondence from the Worker to the Insurer dated September 2017, which states verbatim:
‘…I found my weekly payments from the Insurer are incorrect. The Insurer was given information from the pre-injury employer incorrect details which went back too far. Some of the information provided is not relative to my claim and there has been some confusion in the PIAWE calculations.
Can you please acknowledge and rectify this.’
- In the application, the Worker has indicated that an internal review decision has not been made by the Insurer within 30 calendar days and indicates that an application for internal review by the Insurer was submitted on ‘XX or XX Sept 2017’.
- There is no evidence that has been supplied to date to indicate that the Worker did in fact complete an application for internal review by the Insurer and submit it to the Insurer on or around XX or XX September 2017.
- The email correspondence dated XX September 2017 from the Worker to the Insurer does not constitute a correct and proper application for internal review by the Insurer form as stipulated by the Guidelines.
- In these circumstances, I accept that the Worker did not lodge an application for internal review of the work capacity decision prior to filing an application for merit review by the Authority.
- In accordance with section 44BB(1)(a) of the 1987 Act, there is no information available to indicate that:
a) the Worker has lodged with the Insurer a work capacity decision - application for internal review by the Insurer; and
b) The Insurer has had the required 30 day timeframe in which to undertake an internal review of the work capacity decision.
- For this reason, I am not satisfied that the dispute has been the subject of an internal review by the Insurer, to then enable the Worker the legislative right to seek a merit review by the Authority.
- Therefore, the Authority does not have jurisdiction, at this time, to review this matter as there has been no opportunity for the Insurer to conduct an internal review of its work capacity decision.
- As discussed above, the Authority is subject to strict legislative requirements with respect to its jurisdiction, in order to accept an application for merit review.
- Accordingly, the Authority does not have jurisdiction at this stage to undertake a merit review of the work capacity decision dated June 2016.
- In order for the Authority to have jurisdiction, the work capacity decision will need to have been the subject of an internal review by the Insurer. Thus, the Worker must lodge a completed ‘Work capacity - application for internal review by insurer’ with the Insurer.
- If the Worker is not satisfied with the internal review decision made by the Insurer, or if they fail to conduct an internal review within 30 days, the Worker may then lodge with the Authority a ‘work capacity – application for merit review by the Authority’ form.
Merit Review Service
Delegate of the State Insurance Regulatory Authority