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SIRA Dispute Resolution Services guide to Workers Compensation Merit Reviews

This guide details the procedures and process for workers compensation merit reviews conducted by SIRA.

SIRA merit review policy and process

This Guide provides information regarding the procedures for the referral of work capacity decisions for merit review by the State Insurance Regulatory Authority (SIRA), as well as the procedure for merit reviews by SIRA under section 44BB(1)(b) of the Workers Compensation Act 1987.

This Guide demonstrates how SIRA gives effect to the operation of those sections of the Workers Compensation Act 1987 relating to the merit review of work capacity decisions. It is made to guide workers, employers, insurers and their representatives through the processes and procedures that will be used by SIRA.

This Guide is not intended to provide legal advice about the operation of the legislation.

Cameron Player
Executive Director
Dispute Resolution Services
State Insurance Regulatory Authority

Published 27 September 2017, effective 27 September 2017.

Explanatory note

This Guide provides information regarding the procedures for referring work capacity decisions for merit review by the State Insurance Regulatory Authority (the Authority), as well as the procedure for merit reviews by the Authority under section 44BB(1)(b) of the Workers Compensation Act 1987 (the 1987 Act).

The Guide demonstrates how the Authority gives effect to the operation of the legislation relating to the merit review of insurer work capacity decisions. It is designed to guide workers, employers, insurers and their representatives through the merit review processes and procedures used by the Authority.

Established by the Authority, the Workers Compensation Merit Review Service (MRS) conducts merit reviews of disputes regarding an insurer’s work capacity decision.

This Guide will help inform the parties to a dispute in making and dealing with an application to MRS. Clear and easily accessible information directed towards self-represented workers is also available on the Authority’s website. This Guide is also intended to assist merit reviewers in the conduct of a merit review.

This Guide replaces the Merit Review User Guide published on 17 June 2016 (the 2016 User Guide) as far as they applied to merit reviews by the Authority. They will apply to all new applications received at MRS on or after 27 September 2017, and to all matters current at MRS on or after that date, which have not been determined by the issuing of findings and recommendations, unless otherwise provided for in this Guide.

The former versions of this instrument have been issued to date and the commencement timing details for this Guide are as follows:

  • Version 1, Review Guidelines effective 1 October 2012, gazetted 28 September 2012
  • Version 2, Review Guidelines effective 1 January 2013, gazetted 7 December 2012
  • Version 3, Review Guidelines effective 11 October 2013, gazetted 8 October 2013
  • Version 4, Merit Review User Guide effective 1 August 2016, published 17 June 2016
  • Version 5, SIRA Dispute Resolution Services: A guide to Workers Compensation Merit Reviews published 27 September 2017, and effective 27 September 2017.

The Authority also publishes on its website a suite of complementary supporting information and materials to assist and inform workers, insurers and their representatives.

Questions about this Guide, MRS, or any feedback for consideration in future revisions, should be directed to the Director Merit Review or the Executive Director, Dispute Resolution Services.

Cameron Player
Executive Director
Dispute Resolution Services
State Insurance Regulatory Authority

Division 1: Introduction, registry and documents

1. Introduction and interpretation

1.1. The SIRA Workers Compensation Merit Review Service (MRS) is established by the Authority to conduct merit reviews under section 44BB(1)(b) of the 1987 Act.

Workers Compensation Act 1987, 44BB: Review of work capacity decisions

(1)  An injured worker may refer a work capacity decision of an insurer for review:

(a)  by the insurer in accordance with the Workers Compensation Guidelines within 30 days after an application for internal review is made by the worker, or

(b)  by the Authority (as a merit review of the decision), but not until the dispute has been the subject of internal review by the insurer, or

(c)  to the Independent Review Officer (as a review only of the insurer’s procedures in making the work capacity decision and not of any judgment or discretion exercised by the insurer in making the decision), but not until the dispute has been the subject of internal review by the insurer and merit review by the Authority.

What is the purpose of the guide?

1.2  This guide details the procedures for the referral of work capacity decisions for merit review, and the procedure for merit reviews conducted by the Authority under section 44BB(1)(b) of the 1987 Act.

1.3  This guide seeks to educate workers, employers, insurers and their representatives on the processes and procedures used by the Authority in the conduct of merit reviews.

1.4  This guide helps guide workers, officers of the Authority, the insurance industry, parties to claims and members of the legal profession, on how to make and deal with an application to the MRS. This guide is also intended to guide merit reviewers in the conduct of merit reviews.

1.5  The guide replaces the Merit Review User Guide published on 17 June 2016 (the 2016 guide) that came into effect on 1 August 2016, insofar as they applied to merit reviews by the Authority. It will apply to all new applications received at MRS on or after 27 September 2017, and all current matters at MRS on or after that date, which have not been determined by the Authority, unless otherwise provided for in this guide.

1.6  As a transitional arrangement, and to avoid requirements that might be unreasonable in the circumstances on any person or entity, a merit reviewer may waive observance of any part or parts of this guide (except as legally required under legislation) for any application that has been lodged before it came into effect if to do so would be consistent with the system objects, the objects of MRS, and does not cause undue prejudice to the parties.

What definitions apply in this guide?

1.7  The definitions in sections 3, 4 and 32A of the 1987 Act, and sections 4, 42 and 70 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), apply to this guide to the extent that they are not defined in clause 1.8.

1.8  The terms used in this guide have the following meanings:

1.8.1  1987 Act - Workers Compensation Act 1987.

1.8.2  1998 Act - Workplace Injury Management and Workers Compensation Act 1998.

1.8.3  2016 Regulation – the Workers Compensation Regulation 2016.

1.8.4  Applicant - The worker that lodges an application.

1.8.5  Application – The means by which a worker requests the referral of a work capacity decision by an insurer for a merit review by the Authority.

1.8.6  AuthorityState Insurance Regulatory Authority (SIRA).

1.8.7  Days – A reference to a number of calendar days, unless otherwise stated.

1.8.8  DX box – Exchange box in the Australian Document Exchange Pty Ltd.

1.8.9  Online portal – An electronic case management system established by the Authority.

1.8.10  Electronic Transactions ActElectronic Transactions Act 2000.

1.8.11  Form – A form approved by the Authority that may contain an application and/or a reply to an application.

1.8.12  Insurer – Any party against whom a claim is made under the 1987 Act or 1998 Act.

1.8.13  Interpretation ActInterpretation Act 1987.

1.8.14  MRS – Workers Compensation Merit Review Service of the Authority.

1.8.15  Matter – The application, reply all supporting documents and correspondence held by the Authority in relation to one discrete application. Each application lodged is given a discrete matter number.

1.8.16  Merit reviewer – The person conducting a merit review by the Authority of a work capacity decision made by an insurer.

1.8.17  Officer of MRS – A person working on behalf of the Authority undertaking work in relation to merit reviews.

1.8.18  Party – The worker, the insurer in respect of the application for merit review.

1.8.19  Registry – That part of the Authority that receives documents for the purpose of merit reviews.

1.8.20  Reply – The means by which an insurer answers an application.

1.8.21  SIRA – State Insurance Regulatory Authority.

1.8.22  WIROWorkers Compensation Independent Review Officer.

1.8.23  Workers Compensation Independent Review Officer – The person holding office under Chapter 2, Part 3 of the 1998 Act who may conduct a procedural review of an insurer’s work capacity decision after an internal review by the insurer and a merit review by the Authority.

What are the objectives of MRS?

1.9  The objectives of MRS are consistent with and support the system objectives set out in section 3 of the 1998 Act.

Workplace Injury Management and Workers Compensation Act 1998, 3: System objectives

The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:

(a)  to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,

(b)  to provide:

  • prompt treatment of injuries, and
  • effective and proactive management of injuries, and
  • necessary medical and vocational rehabilitation following injuries,in order to assist injured workers and to promote their return to work as soon as possible,

(c)  to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,

(d)  to be fair, affordable, and financially viable,

(e)  to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,

(f)  to deliver the above objectives efficiently and effectively.

1.10  The MRS objectives should be used as an aid to the interpretation of this guide. The objectives of the MRS in dealing with merit reviews of work capacity decisions are:

1.10.1  to provide a timely, fair and cost effective system for the conduct of work capacity decision merit reviews, that is accessible, transparent, independent and professional

1.10.2  to conduct merit reviews fairly and according to the substantial merits of the application with as little formality and technicality as is practicable

1.10.3  to ensure the quality and consistency of decision making

1.10.4  to promote the resolution of the claim or dispute using dispute resolution processes appropriate to the claim or dispute

1.10.5  to promote the publication of merit reviews to enhance transparency, accountability, education and guidance, help improve work capacity decision making and minimise disputation

1.10.6  to make appropriate use of the knowledge and experience of merit reviewers, and

1.10.7  to establish and maintain effective communication and liaison with stakeholders concerning the role of MRS.

What are the obligations of the Authority, the parties, and their representatives?

1.11  In exercising their functions and interpreting the provisions of this guide, the Executive Director Dispute Resolution Services, Director Merit Reviews, merit reviewers and officers of the Authority must have regard to the objectives of the MRS, in addition to the system objectives in the Act.

1.12  The Authority is under an obligation, in relation to merit reviews referred to MRS, to:

1.12.1   provide and maintain a service to assist workers in connection with the merit review process

1.12.2  review, monitor and report on compliance with this guide and the nature of complaints received about claims handling practices, and

1.12.3  report any apparent non-compliance with this guide to the relevant regulatory authority.

1.13  An insurer is under an obligation, in relation to merit reviews referred to MRS, to:

1.13.1  encourage and facilitate the use of the service to assist workers to understand the merit review procedures

1.13.2  comply with the requirements of this guide

1.13.3  attempt to resolve the claim or dispute, and identify and narrow any issues in dispute before any application is lodged with MRS and to continue to do so while the application is being considered by MRS

1.13.4  assist MRS to further the MRS objectives and the system objectives, and

1.13.5  proactively participate in merit review processes and comply with requests or directions.

1.14 A worker is under an obligation, in relation to merit reviews referred to MRS, to:

1.14.1  attempt to resolve the claim or dispute, and identify and narrow any issues in dispute before any application is lodged with MRS and to continue to do so while the application is being considered by MRS

1.14.2  assist MRS to further the MRS objectives and the system objectives, and

1.14.3  proactively participate in merit review processes and comply with requests or directions, particularly in relation to the provision of information relevant to the decision under review.

1.15 A representative of a worker or insurer is under an obligation, in relation to merit reviews referred to MRS, to:

1.15.1  assist MRS to further the MRS objectives and the system objectives, and

1.15.2  ensure that, as the solicitor, barrister, agent or other person representing a party at the MRS, they do not, by their conduct, cause the party they represent to fail to meet their obligations set out in clause 1.13 or clause 1.14.

Can legal practitioners recover costs related to reviews of work capacity decisions?

1.16  Insurer legal costs prohibition - The Workers Compensation Amendment Act 2015, inserted section 44BF into the 1987 Act. The 2016 Regulation has not fixed any costs for providing legal service to an insurer in connection with a review.

Workers Compensation Act 1987, Subdivision 3A, Review of work capacity decisions, 44BF: Legal costs

(1)  A legal practitioner is not entitled to be paid or recover any amount for a legal service provided to a worker or an insurer in connection with a review if:

(a)  the review is of a prescribed class, or

(b)  the regulations do not fix any maximum costs for providing the legal service to the worker or insurer in connection with the review.

(2)  Despite section 341 of the 1998 Act, the regulations may provide that, in prescribed circumstances, a party to a review under this Subdivision (other than an internal review) is to bear the other party’s costs in connection with the review.

1.17  Worker legal costs - The Workers Compensation Amendment (Legal Costs) Regulation 2016, amended the 2016 Regulation by inserting Division 3A. As costs have been fixed by the 2016 Regulation under to section 44BF of the 1987 Act, legal practitioners may recover costs under to Part 17, Division 3A, regulations 99A and 99B.

1.18  Under the 2016 Regulations a worker is eligible to access legal advice in relation to work capacity decisions made on or after 16 December 2016:

1.18.1  after an internal review of a work capacity decision by the Insurer has been conducted and the worker has been notified of the decision by the Insurer; or

1.18.2  if the Insurer has not completed an internal review of the work capacity decision within 30 days after the worker has made an application for an internal review.

Workers Compensation Regulation 2016, Part 17 Costs, Division 3A Costs recoverable in reviews of work capacity decisions: 99A Definitions

In this Division:

favourable finding, in relation to a merit review, means a finding or recommendation of the Authority that has the effect of increasing the amount of weekly payments of compensation payable to the worker concerned, as compared with the amount payable as a result of:

(a)  the review decision, or

(b)  the original work capacity decision that was the subject of the application for internal review,
whichever is the most recent decision.

merit review means a review of a work capacity decision under section 44BB (1)(b) of the 1987 Act, but only if:

(a)  an internal review of the work capacity decision (the original work capacity decision) by the insurer under section 44BB (1)(a) of the 1987 Act (an internal review) has been conducted and the worker has been notified of the decision of the insurer with respect to the internal review (the review decision), or

(b)  the insurer has not completed an internal review within 30 days after the application for the internal review was made by the worker.

Workers Compensation Regulation 2016, Part 17 Costs, Division 3A Costs recoverable in reviews of work capacity decisions, 99B: Maximum costs

(1)  For the purposes of section 44BF (1)(b) of the 1987 Act, the maximum costs that a legal practitioner is entitled to be paid by, or recover from, the insurer for providing a legal service to a worker in connection with an application or proposed application for a merit review is:

(a)  if the application is made and results in a favourable finding—$1,800, or

(b)  in any other case—$1,200.

Note: Division 3 of Part 4.3 of the Legal Profession Uniform Law (NSW) requires barristers and solicitors, before providing any services to a client, to provide the client with a written disclosure of the basis of the costs (or an estimate of the likely costs) of services concerned.

(2)  However, subclause (1) is limited as follows:

(a)  only one amount for costs is payable in respect of the application or proposed application regardless of the number of original work capacity decisions or review decisions to be reviewed under the application or proposed application,

(b)  only one legal practitioner is entitled to be paid or recover costs in respect of providing the legal service to which subclause (1) applies,

(c)  without affecting the operation of paragraph (b)—if the worker retains more than one legal practitioner to provide a legal service in connection with a proposed application for merit review in relation to the same original work capacity decision, only the first legal practitioner so retained who provides the legal service is entitled to be paid or recover costs for providing that service,

(d)  the legal service must be provided within 30 days after the worker was notified of the review decision.

(3)  To avoid doubt, a legal practitioner is entitled to be paid or recover an amount referred to in this clause whether or not the worker makes an application for a merit review in connection with which the legal service was provided.

(4)  A legal practitioner is not entitled to be paid or recover an amount referred to in this clause for providing a legal service in connection with an original work capacity decision made before the commencement of this clause.

2. Interpreters at the Workers Compensation Merit Review Service

2.1  If a worker indicates they need the assistance of an interpreter, MRS will arrange an interpreter to be available to the worker.

Who can act as an interpreter?

2.2  The Authority will use interpreters accredited by NAATI (National Accreditation Authority for Translators and Interpreters) if required.

2.3  In the absence of a NAATI interpreter, a non-NAATI interpreter may be used at the discretion of the merit reviewer, provided that person is not a worker’s support person.

3. Timelines at the Workers Compensation Merit Review Service

Can time limits be extended?

3.1  The Executive Director Dispute Resolution Services and/or the Director Merit Reviews may, if the circumstances justify, abridge or extend any time limit fixed by this Guide (excluding any time limit fixed by the legislation), including any time limit affecting the Authority, an officer of MRS, or a merit reviewer.

3.2  The Executive Director Dispute Resolution Services and/or the Director Merit Reviews may extend time under clause 3.1 after the time expires, whether or not an application is made before the time expires, or at all.

How are periods of time calculated?

3.3  Any period of time fixed by this guide for the doing of any act or in connection with any merit review or request by the Authority, or a merit reviewer, will be calculated in accordance with section 36 of the Interpretation Act and this clause:

3.3.1  where a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time will be reckoned exclusive of that day or of the day of that act or event

3.3.2  where, apart from this sub-clause, the period in question, being a period of five days or less, would include a day on which the registry is closed for lodgment in person, that day will be excluded, and

3.3.3  where the last day for doing a thing is a day on which the registry is closed for lodgment in person, the thing may be done on the next day on which the registry is open for lodgment in person.

4. Documentation and other supporting material

4.1  All relevant documents that a party wishes to be considered as part of their application or reply should be listed in the application or reply, and must be provided to the other party either through the online portal, or via post or personal lodgment if the online portal is not able to be accessed by the worker.

What happens if the date a document was delivered is unknown?

4.2  For the purpose of this guide, if the date of delivery or receipt of a document cannot be ascertained, and the document was delivered to the address given by a worker or insurer for delivery of documents by post or personal service, then the Authority will apply deeming provisions as set out in clause 4.3.

4.3  Unless there is evidence to the contrary, the documents are to be taken to be received by the person as follows:

4.3.1  in the case of personal delivery to a physical address, the day the document is delivered to that address

4.3.2  in the case of postage to a postal address, five days after the document is posted

4.3.3  in the case of sending to a DX box, two days after the document is left in that DX box or in another DX box for transmission to that DX box

4.3.4  in the case of an email to an email address, on the day the email is sent if received by 11.59 pm, or

4.3.5  in the case of a facsimile to a facsimile number, on the day the facsimile is sent if sent before 5:00pm, or on the day after the facsimile is sent if sent at or after 5:00pm.

4.4  For matters lodged via the online portal, the provisions of section 13 of the Electronic Transactions Act 2000 apply for the purpose of this Guide.

4.5  Notices are required to be given to a worker personally or by post as set out in section 54(4) of the 1987 Act.

How are surveillance images and footage managed?

4.6  Any surveillance images or footage lodged with the Authority are to be provided by the insurer in DVD format and must first be provided to the worker or exchanged with the worker through the online portal. Any investigator’s or loss adjuster’s report concerning those surveillance images or footage must be provided at the same time as the surveillance images or footage.

4.7  If surveillance images or footage are provided by an insurer to a worker for the first time in support of a reply lodged with the Authority, the worker will be given an opportunity to respond to the surveillance images or footage.

4.8  Surveillance images and footage held by the Authority which contains personal information are subject to the Privacy and Personal Information Protection Act 1998.

5. Electronic Dispute Management System (EDM)

5.1  The Authority has established an online portal to:

5.1.1  enable applications and replies to be created, lodged, exchanged, and accessed in electronic form

5.1.2  enable documents, with respect to applications, to be created, exchanged, lodged, issued and accessed in electronic form by the parties and the Authority

5.1.3  enable parties to applications to communicate in electronic form with the Authority and with other parties

5.1.4  enable information concerning the progress of applications to be provided in electronic form to parties to those disputes; and/or

5.1.5  enable officers of the Authority to communicate in electronic form with parties to applications.

5.2  The Authority may issue an information sheet for the use of the EDM system, and establish requirements for persons to become registered users of the EDM system, in addition to decision makers and officers of the Authority.

5.3  Such an information sheet may provide, among other things, for the specification of the level of access to the EDM system to which persons or specified classes of persons are entitled, the conditions of use of the EDM system applicable to persons generally or persons of any such class, the security methods by which persons using the EDM system are identified and verified, and how users gain access to the EDM system.

5.4  Subject to any information sheet, a person other than a decision maker and an officer of the Authority may not use the EDM system for a particular application unless the person is a registered user of the EDM system and is:

5.4.1  a party to the application or

5.4.2  a legal practitioner or agent representing a party to the application.

5.5  In relation to any application, the level of access to the EDM system to which a user is entitled, and the conditions of use applicable to a user, are subject to any decision of the Authority.

5.6  Documents and information lodged via the EDM system may be dealt with in accordance with the provisions of the Electronic Transactions Act 2000.

5.7  When the Authority sends documents, or forwards correspondence to a party who is a registered user of the EDM system, the Authority will generally only do so via electronic communication to that party through the EDM system.

5.8  Parties should be aware that all applications, replies and supporting documentation lodged in the online portal can be viewed by all parties to that particular matter only as well as officers of the Authority.

5.9  When the Authority sends documents, or forwards correspondence to a party who is a registered user of the online portal, the Authority will generally only do so via electronic communication to that party.

5.10  All parties are encouraged to use the online portal to lodge applications, replies and supporting documentation.

5.11  Insurers and legal representatives lodging documentation in the online portal will be required to categorise those documents in accordance with the documentation categorization established by the Authority.

Division 2: Merit reviews by the Authority

6. Workers Compensation Merit Review Service jurisdiction

What is a work capacity decision?

6.1  Work capacity decisions by insurers are defined in section 43 of the 1987 Act.

Workers Compensation Act 1987, 43: Work capacity decisions by insurers

(1)  The following decisions of an insurer (referred to in this Division as work capacity decisions) are final and binding on the parties and not subject to appeal or review except review under section 44BB or judicial review by the Supreme Court:

(a)  a decision about a worker’s current work capacity,

(b)  a decision about what constitutes suitable employment for a worker,

(c)  a decision about the amount an injured worker is able to earn in suitable employment,

(d)  a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,

(e)  a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,

(f)  any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).

(2)  The following decisions are not work capacity decisions:

(a)  a decision to dispute liability for weekly payments of compensation,

(b)  a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.

6.2  Section 43(1)(a) to (e) of the 1987 Act specifically identifies some decisions of insurers which are work capacity decisions that are final and binding on the parties and not subject to appeal or review except review under section 44BB or judicial review by the Supreme Court.

6.3  Section 43(1)(f) of the 1987 Act expands upon the definitions of a work capacity decision to also include ‘any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation’.

6.4  Section 43(2) of the 1987 Act identifies some decisions of insurers which are not work capacity decisions and cannot be referred to the MRS.

6.5  An officer of the MRS may reject an application or any part of an application as not properly made if the officer is satisfied that the application in whole or part does not establish that it relates to a work capacity decision.

Which work capacity decisions can be referred for merit review?

6.6  A worker may refer a work capacity decision, or decisions, to the Authority for merit review, but only after that work capacity decision has been the subject of an internal review by the insurer, in accordance with section 44BB(1)(b) of the 1987 Act.

Workers Compensation Act 1987, 44BB: Review of work capacity decisions

(1)  An injured worker may refer a work capacity decision of an insurer for review:

(a)  by the insurer (an internal review) in accordance with the Workers Compensation Guidelines within 30-days after an application for Internal Review is made by the worker, or

(b)  by the Authority (as a merit review of the decision), but not until the dispute has been the subject of Internal Review by the insurer, or

(c)  to the Independent Review Officer (as a review only of the insurer’s procedures in making the work capacity decision and not of any judgment or discretion exercised by the insurer in making the decision), but not until the dispute has been the subject of internal review by the insurer and merit review by the Authority.

When must you lodge an application for merit review?

6.7  Any application for merit review must be made by the worker to the Authority in accordance with section 44BB(3) of the 1987 Act.

Workers Compensation Act 1987, 44BB: Review of work capacity decisions

(3)  The following provisions apply to the review of a work capacity decision when the reviewer is the Authority or the Independent Review Officer:

(a)  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)…

(b)  an application for review by the Authority may be made without an internal review by the insurer if the insurer has failed to conduct an internal review and notify the worker of the decision on the internal review within 30 days after the application for internal review is made.

6.8  If an insurer has failed to complete an internal review and notify the worker within 30 days of the internal review being lodged, an application for merit review may be lodged by a worker without the internal review having been completed.

6.9  If an insurer has completed an internal review, a worker’s application for merit review must be lodged with the MRS within 30 days of receiving notice of the internal review decision from the insurer.

7. Lodging applications and replies with the Workers Compensation Merit Review Service

Lodging an application in the online portal

7.1  Workers are encouraged to access the Authority’s Electronic Dispute Management (EDM) system, via an online portal, to lodge an application.

7.2  Online applications may be lodged up until 11.59 pm on the final day for lodgment of an application with the Authority.

7.3  Applications lodged by a worker’s legal representative are to be lodged in the online portal.

7.4  Applications lodged in the online portal are not required to be sent in paper form to either the Insurer or the Authority. By lodging an application in the online portal, the Insurer and the Authority will be notified of the application.

7.5  All decisions will be provided to a worker by post as well as in electronic form.

7.6  Access the Merit Review Portal.

Lodging an application by calling the Authority

7.7  A worker may lodge an application in the online portal by calling the Authority on 13 10 50 between the hours of 9.00 am and 5.00 pm, Monday to Friday (excluding public holidays). An officer of the MRS will enter the information into the online portal on behalf of a worker.

7.8  Any application lodged by calling the Authority, will be confirmed to the worker in writing.

7.9  If a worker has an email address, a user account will be created for the worker and all replies, documentation, correspondence and decisions will be provided electronically to the worker in the online portal, unless otherwise allowed.

7.10  If a worker does not have computer access, all replies, documentation and correspondence from the insurer or the Authority will be provided in paper form.

7.11  All decisions will be provided to a worker by post as well as in electronic form.

Where do you send paper documents to MRS?

7.12  A worker who is unable to access the online portal, may make an  application and forward all supporting documents, letters or correspondence to MRS, unless explicitly directed otherwise, at the MRS registry:

Merit Review Service
State Insurance Regulatory Authority
Post: Level 19, 1 Oxford Street,
Darlinghurst, NSW, 2010
DX: DX 10 SYDNEY

7.13  It is sufficient notification, or service, for any document or correspondence directed to the Executive Director Dispute Resolution Services, Director Merit Reviews, a merit reviewer, officer of MRS, or the MRS to be left in the DX box of the Authority at DX 10 Sydney or at another DX box for transmission to that exchange box.

When is the MRS registry open?

7.14  The registry is open for lodgment of documents in person from 8:30am to 5:00pm except on Saturdays, Sundays, and public holidays.

7.15  The registry will, notwithstanding clause 7.14, be kept open for business or closed for business, at such times and on such days as the Authority may direct.

7.16  The registry may make provision for lodgment of documents electronically and also outside the registry’s usual opening hours.

7.17  Any documents lodged electronically after 11.59 pm are deemed to have been received on the next day that the registry is open to the public for lodgment of documents in person.

What happens if parties have representatives or agents?

7.18  If a legal practitioner, agent or other representative represents the worker in respect of the merit review:

7.18.1  it is sufficient notification for the merit reviewer, an officer of MRS or an insurer to send any document required to be sent to the worker (aside from the decision), to the legal practitioner, agent or other representative, and

7.18.2  the merit reviewer or an officer of MRS may, notwithstanding that the worker has representation, contact the worker directly in relation to a merit review.

7.19  If a legal practitioner, agent or other representative represents the insurer in respect of the merit review:

7.19.1  it is sufficient notification for the merit reviewer, an officer of MRS or a worker to send any document required to be sent to the insurer to the legal practitioner, agent or other representative, and

7.19.2  the merit reviewer or an officer of the MRS may, notwithstanding that the insurer has representation, contact the insurer directly in relation to a merit review.

7.20  If a party, represented by a legal practitioner, agent or other representative, requests the MRS to do so, the merit reviewer or an officer of MRS may at their discretion, send a copy of any document required to be sent to that party, to the party direct, in addition to that party’s legal practitioner, agent or other representative.

7.21  If, after an application or reply is lodged at the MRS, a party retains a legal practitioner, agent or other representative to represent them, or changes their representative, that party must notify the Authority and the other party in writing within five days of the date of the retainer or change in representation.

How do you lodge an application?

7.22  An application for merit review by the Authority must be made in accordance with the requirements of section 44BB(2) of the 1987 Act.

Workers Compensation Act 1987, 44BB: Review of work capacity decisions

(2)  An application for review of a work capacity decision must be made in the form approved by the Authority and specify the grounds on which the review is sought. The worker must notify the insurer in a form approved by the Authority of an application made by the worker for review by the Authority or the Independent Review Officer.

7.23  An application for merit review to the Authority must be made by the worker in the form approved by the Authority. There are two approved forms: an online form in the online portal and a paper form for post or personal lodgment.

7.24  The paper form approved by the Authority which may be used by workers who cannot access the online portal is the Work capacity – application for merit review by the authority form available on the SIRA website.

7.25  A worker may be assisted in completing the application form (either electronic or paper) by another person such as the insurer, a support person, agent, union, representative, employer, legal representative, or interpreter.

7.26  The application must specify the work capacity decision, or decisions, which the worker seeks to be reviewed, as well as the period of time in weeks which are sought to be reviewed relating to those decisions.

7.27  The application must also explain how and why the worker believes the decision should be changed, and the worker may attach any new or additional information relevant to the work capacity decision.

7.28  The worker does not need to attach to their application all of the existing documents and information relating to the claim or the work capacity decision, as the insurer will be required to provide all relevant information to the Authority as part of their reply to the application.

7.29  Any new or additional information provided by the worker either in the online portal or in paper form, must be included with the application.

7.30  The Authority may decline to review a work capacity decision if the worker has not complied with section 44BB(2).

What happens after an application is lodged?

7.31  The Authority will write to the worker and insurer, either by electronic communication from the EDM system (via the online portal) or by letter where the EDM system has not been accessed as soon as practicable and preferably within seven days of receiving the application for review to acknowledge receipt of the application and to:

7.31.1  explain the review process

7.31.2  confirm that the worker and insurer may provide any new or additional information relevant to the work capacity decision either in the online portal or by post

7.31.3  advise if any additional information is required to assist in the conduct of the merit review from the parties, and when that information is due, and

7.31.4  indicate when and how the merit review decision will be conveyed to the worker and insurer.

How do you lodge a reply to an application?

7.32  A reply to an application for merit review must be lodged by the insurer with the Authority in the form approved by the Authority, as quickly as possible and preferably within seven days of receiving the worker’s application.

7.33  Insurers are  to lodge a reply to an application for merit review by using the EDM (via the online portal). All supporting documentation is to be categorised as shown in the document categorisation schedule.

7.34  If a worker has lodged an application with the Authority via the EDM system, the  worker will be notified electronically of any reply lodged by the Insurer and will be able to access all supporting documentation lodged with the reply via the EDM system. Copies will not need to be provided to the worker if the EDM system l is utilised.

7.35  The paper form approved by the Authority for that purpose is the Work capacity – reply to an application for merit review by the Authority form available on the SIRA website. That form must be emailed to the Authority if the online portal is not utilised by the Insurer.

7.36  The reply lodged with the Authority must:

7.36.1  include a detailed list of all documents relevant to the work capacity decision, or decisions, and the review of that decision, including documents supplied by the worker, and

7.36.2  upload or attach electronic copies of all of the documents included in the list of relevant documents, including documents supplied by the worker.

7.37  If the Insurer does not use the online portal, the insurer must first notify the worker of its reply to the application, by sending the worker a copy of the reply before, or at the same time as, lodging the reply with the Authority.

7.38  The reply provided to the worker must include the list of all relevant documents but does not need to attach copies of all the relevant documents being lodged with the reply. The insurer must provide the worker with copies of any of those documents which have not already been provided to the worker previously if the online portal is not utilised.

Acknowledgement of insurer’s reply

7.39  The Authority will advise the worker and the insurer through the online portal, or write to a worker who is unable to access the EDM system, as soon as practicable and preferably within seven days of receiving the reply from the insurer to acknowledge receipt of the reply and to:

7.39.1  explain the review process

7.39.2  advise if any additional information is required to assist in the conduct of the merit review from the parties, and when that information is due, and

7.39.3  indicate when and how the merit review decision will be conveyed to the worker and insurer.

Exchange of information by workers and insurers

7.40  When the worker or insurer lodge information or documentation in the EDM system, each party will be notified electronically of the Authority’s receipt of the information and will be able to login via the online portal to view the information or documentation.

7.41  Any informati

on that the worker sends to the Authority which is unable to be lodged in the online portal, whether as part of an application, in response to a request by the Authority, or otherwise, must be sent to the insurer before, or at the same time as, sending the information to the Authority. The EDM system will facilitate the workers and insurers to easily exchange information.

7.42  If the worker has not utilised the EDM system, all information that the insurer sends to the Authority must be sent to the worker before, or at the same time as, sending the information to the Authority.

8. The merit review process

Why may the Authority decline to review a decision?

8.1  The Authority may decline to review a decision, and dismiss an application or part thereof, for a number of reasons including:

8.1.1  No work capacity decision - The application does not relate to a work capacity decision under section 43 of the 1987 Act

8.1.2  No internal review - The work capacity decision has not been the subject of an application for internal review by the insurer, as required by section 44BB(1)(b) of the 1987 Act

8.1.3  Not in the approved form - The application has not been made in the online portal or in the form approved by the Authority, under section 44BB(2) of the 1987 Act

8.1.4  Review grounds not specified - The application does not specify the grounds on which the review is sought, under section 44BB(2) of the 1987 Act

8.1.5  Insurer not notified - The worker has not notified the insurer of the application as required by section 44BB(2) of the 1987 Act

8.1.6  Not lodged within time - The application has not been made within the time limits set out in section 44BB(3)(a) and (b) of the 1987 Act

8.1.7  Frivolous or vexatious application - The application for review is frivolous or vexatious, under section 44BB(3)(c) of the 1987 Act

8.1.8  Information not provided - The worker has failed to provide information which has been requested by the reviewer, under section 44BB(3)(c) of the 1987 Act.

Workers Compensation Act 1987, 44BB: Review of work capacity decisions

(3)  The following provisions apply to the review of a work capacity decision when the reviewer is the Authority or the Independent Review Officer:

(a)  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),

(b)  an application for review by the Authority may be made without an internal review by the insurer if the insurer has failed to conduct an internal review and notify the worker of the decision on the internal review within 30 days after the application for internal review is made,

(c)  the reviewer may decline to review a decision because the application for review is frivolous or vexatious or because the worker has failed to provide information requested by the reviewer

8.1.9  Application withdrawn by worker - The worker advises that they would like to withdraw their application, or

8.1.10  Claim finalised - The worker’s claim with the insurer has been resolved, settled, finalised or determined.

8.2  The Authority will notify the worker and insurer if the Authority declines to review a decision and dismiss an application or part of an application.

8.3  If the Authority declines to review a decision, the dispute has not ‘been the subject of merit review by the Authority’ as required by section 44BB(1)(c) of the 1987 Act in order to enable a subsequent application to be made to WIRO for procedural review.

Can you correspond with a merit reviewer?

8.4  Workers, insurers and their representatives must not correspond directly with merit reviewers in relation to a merit review, either in respect of a current or concluded review.

8.5  All correspondence to, and communication with, a merit reviewer must be directed to the merit reviewer through the MRS registry.

How is the merit review conducted?

8.6  A merit review by the Authority is to be undertaken by a merit reviewer appointed by the Authority who is a person:

8.6.1  with the appropriate level of knowledge, expertise and skill relevant to the particular work capacity decision referred for review, and

8.6.2  who was not involved in the making of the original work capacity decision or the internal review by the insurer.

8.7  The merit reviewer may determine his or her own procedure, is not bound by the rules of evidence and may inquire into any matter relating to the review of the work capacity decision in such manner as they think fit.

Note: Most merit reviews are currently conducted on the papers; however some merit reviews have benefitted from either a teleconference, or a face-to-face meeting or conference between one or more of the parties and their representatives with the merit reviewer and/or an officer of the Authority, depending on the nature of the claim and the work capacity decision under review.

8.8  Merit reviewers are bound by the rules of procedural fairness.

8.9  The merit reviewer is to try to ensure that the parties understand the nature of the application, the issues to be considered and the role of the merit reviewer as an independent decision-maker, and that the parties have had an opportunity to have their submissions and any relevant documents or information considered.

8.10  The merit reviewer is to act with as little formality as the circumstances of the review permit and according to equity, good conscience and the substantial merits of the review without regard to technicalities and legal forms.

8.11  The merit reviewer will take into account the workers compensation system objectives and the objectives of MRS at all times.

8.12  The merit reviewer may reasonably require additional information from the worker or the insurer for the purposes of the review. That additional information must be provided under section 44BB(3)(d) of the 1987 Act.

Workers Compensation Act 1987, 44BB: Review of work capacity decisions

(3)  The following provisions apply to the review of a work capacity decision when the reviewer is the Authority or the Independent Review Officer:

(c)  the reviewer may decline to review a decision because the application for review is frivolous or vexatious or because the worker has failed to provide information requested by the reviewer,

(d)  the worker and the insurer must provide such information as the reviewer may reasonably require and request for the purposes of the review

8.13  If additional information is required from the worker, the merit reviewer should allow the worker no less than seven days to supply any such information. The merit reviewer may decline to review a decision if the worker fails to provide information requested by the reviewer under section 44BB(3)(c) of the 1987 Act.

8.14  The merit reviewer is to consider all of the material substantively and on its merits as if the original work capacity decision had not been made, and is obliged to make findings that are more likely than not to be correct.

8.15  Merit reviews by the Authority are conducted in private and are not open to the public.

What happens when the merit review is completed?

8.16  The merit reviewer is to notify the insurer and the worker of the findings of the review and may make recommendations to the insurer based on those findings, giving reasons for any such recommendation, under section 44BB(3)(e) of the 1987 Act.

8.17  The merit review recommendations to the insurer are binding on the insurer and must be given effect to by the insurer under section 44BB(3)(g) of the 1987 Act.

Workers Compensation Act 1987, 44BB: Review of work capacity decisions

(3)  The following provisions apply to the review of a work capacity decision when the reviewer is the Authority or the Independent Review Officer:

(e)  the reviewer is to notify the insurer and the worker of the findings of the review and may make recommendations to the insurer based on those findings (giving reasons for any such recommendation),

(g)  recommendations made by the Authority are binding on the insurer and must be given effect to by the insurer

8.18  The Authority will write to the worker and insurer as soon as practicable and preferably within 30 days of receiving the application, notifying the insurer and the worker of the findings and any recommendations on review.

8.19  The notification of the decision will be in writing and will include:

8.19.1  details of the findings of the review

8.19.2  details of any recommendations to the insurer based on those findings

8.19.3  a statement of reasons which includes the following:

8.19.3.1  findings on material questions of fact, referring to the documents or other material on which those findings were based

8.19.3.2  the merit reviewer's understanding of the applicable law and rules, including the legislation, regulations or guidelines, and

8.19.3.3  the reasoning process that led the merit reviewer to the findings and to any recommendations made.

8.19.4  advice to the worker that they may make an application to WIRO for a review of the insurer’s procedures in making the original work capacity decision, within 30 days after receipt of the merit review decision from the Authority, under section 44BB(1)(c) of the 1987 Act.

Which merit reviews are published?

8.20  The Authority is committed to the publication of merit reviews on the SIRA website.

8.21  The publication of merit reviews is to enhance transparency, accountability and for education purposes including providing guidance to workers, insurers, representatives and all scheme stakeholders. Publication is intended to assist in improving claims management practices, work capacity decision making and minimise disputes.

8.22  The Authority operates under a presumption in favour of the publication of merit reviews, which may include:

8.22.1  publication of a merit review in full, which may only occur where the Authority obtains the consent of the worker, and

8.22.2  publication of de-identified merit reviews, findings and recommendations, statements of reasons, case studies, or head notes about new, novel, or notable issues, ensuring that the privacy of individuals is respected.

8.23  The Authority may withhold from publication all or part of a merit review if it is desirable to do so because of the confidential or sensitive nature of the information, or for any other reason. The final decision concerning whether a decision should be withheld from publication rests with the Director, Dispute Resolution Services.

8.24  Any MRS correspondence, decisions, findings and recommendations, or statements of reasons that are not available to the public are not to be published or distributed by either the worker or insurer, or their representatives or agents, unless prior consent has been obtained from the worker and the Authority.

Note:  An individual’s privacy should be respected. Failure to respect the privacy of an individual may result in a breach of the Privacy and Personal Information Protection Act 1998 (NSW) and/or the Health Records and Information Privacy Act 2002. Section 243 of the 1998 Act also prohibits disclosure of information except in certain circumstances.

Appendix

Refer to SIRA Workers Compensation Merit Review Portal: Document categorisation.