Guidelines

About the Workers Compensation Guidelines

The State Insurance Regulatory Authority (SIRA) is the independent regulator of the NSW Workers Compensation, Compulsory Third Party (CTP) insurance and Home Building Compensation Schemes.

Context

Under section 23 of the State Insurance and Care Governance Act 2015, a principal objective of SIRA in exercising its functions is to provide for the effective supervision of claims handling and disputes arising under NSW workers compensation legislation.

The Workers Compensation Guidelines (Guidelines) support the administration of the NSW Workers Compensation Scheme and are supplemented by Standards of practice (Standards) which outline claims administration and conduct expectations for insurers.

SIRA’s objective in developing the Guidelines and Standards is to improve outcomes in the NSW Workers Compensation Scheme by ensuring that clear, consistent, easy to access expectations areestablished.

SIRA uses the Guidelines, Standards and Customer Service Conduct Principals to hold insurers accountable for delivering high standards of service to workers and their families, carers, employers and other stakeholders.

Legislative framework

The Workers Compensation Act 1987 (1987 Act), the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and all legislative instruments made pursuant to those Acts establish a workplace injury management and workers compensation system in New South Wales.

The Personal Injury Commission Act 2020 (PIC Act) establishes the Personal Injury Commission of New South Wales. The Personal Injury Commission is a single, independent tribunal that manages disputes involving injured workers and road users. The PIC Act established the Independent Review Officer (IRO). The functions of the IRO are set out in Schedule 5 to the PIC Act.

Purpose

The Workers Compensation Guidelines (Guidelines) support delivery of the objectives of the Acts and Workers Compensation Regulation 2016 (2016 Regulation) by guiding insurers, workers, employers, medical and related service providers and other stakeholdersand informing them about certain requirements for claiming workers compensation in NSW.

Guideline-making powers

These Guidelines are made under section 376(1)(c) of the 1998 Act, which empowers SIRA to issue guidelines in accordance with specific guideline-making powers throughout the Workers Compensation Acts. Each Part of these Guidelines identifies the section or sections of the Acts that authorise or require Guidelines to be issued by SIRA.

Interpretation

These Guidelines are to be read in conjunction with relevant provisions of the Acts and the Regulation and in a manner that supports the system objectives as described in section 3 of the 1998 Act.

Words defined in the NSW workers compensation legislation have the same meaning in these Guidelines.

Monitoring

SIRA will monitor and review compliance with these Guidelines. Compliance and enforcement will be undertaken in accordance with SIRA’s Regulatory Framework.

Commencement and application

These Guidelines will take effect and apply from 1 July 2026.

The Guidelines will apply until SIRA amends, revokes or replaces them in whole or in part.

These Guidelines replace the Workers Compensation Guidelines dated March 2021.

Exempt workers

Most requirements in these Guidelines apply to exempt workers (police officers, paramedics and firefighters). Appendix A: Application to exempt workers provides specific detail on which Parts apply.

Coal miners

These Guidelines do not apply to coal miners (workers employed in or about a mine).

Primary psychological injuries

The Workers Compensation Legislation Amendment Act 2025 and the Workers Compensation Legislation (Reform and Modernisation) Act 2026 introduce new eligibility requirements and thresholds for workers compensation benefits for primary psychological injuries notified to the employer after 1 July 2026. A ‘primary psychological injury’ is defined in new section 8C of the 1987 Act. Compensation is payable for a primary psychological injury if the primary psychological injury is:

• Caused by a relevant event or a series of relevant events;
• There is a real and direct connection between the relevant event(s) and employment; and,
• Employment is the main contributing factor to the primary psychological injury.

A ‘relevant event’ is defined by new section 8G of the 1987 Act.

A ‘relevant injury’ (as defined by new section 280AB of the 1998 Act), is a primary psychological injury caused by being subjected to ‘relevant conduct’. Under that section, ‘relevant conduct’ means bullying, sexual harassment, racial harassment or excessive work demands.

Requirements set out in the Guidelines that do not apply to new primary psychological injuries or to relevant injuries are clearly identified.

Part 1: Initial notification of an injury

1.1 Initial notification of injury

Section 266 of the 1998 Act provides that initial notification to an insurer of an injury to a worker means the first notification of the injury that is given to the insurer, in the manner and form required by the Guidelines, by the worker or the employer or by some other person (for example, a medical practitioner, legal representative or insurance broker) acting for or on behalf of the worker or the employer.

Notifications can be written (including online or by email) or verbal (including by phone).

Part 2: Provisional liability

2.1 Delaying provisional weekly payments

Section 267(2) of the 1998 Act allows the Guidelines to define what a ‘reasonable excuse’ may be.

A reasonable excuse may apply to provisional weekly payments but not to provisional medical payments.

Where applicable, prior to deciding not to commence provisional weekly payments on the basis of a reasonable excuse, the insurer is to attempt to resolve the reasonable excuse.

2.2 Provisional liability for medical expenses

Section 280 of the 1998 Act allows the Guidelines to specify the amount up to which an insurer can provisionally accept liability for medical expenses relating to a work-related injury.

An insurer can accept liability for medical expenses on a provisional basis and pay up to $10,000 before being required to make a formal determination of liability.

Part 3: Making a claim

Section 260(2) of the 1998 Act allows the Guidelines to make provision for or with respect to certain matters in connection with the making of a claim, including:

• the form and manner in which a claim is to be made
• the means by which a claim may be made
• the information that a claim is to contain
• requiring specified documents and other material to be included with a claim
• Section 261 of the 1998 Act provides for the time within which a claim for compensation must be made.

3.1 Required information to make a claim

Table 3.1 Required information to make a claim

A claim for compensation must provide the insurer with the following information:

3.2 Requirement for a claim form

Workers can complete and submit a claim form to an insurer at any time, subject to the time limits outlined in the 1998 Act. Claim forms are available from the SIRA website or insurers may have their own claim form.

A claim form is not required to be submitted to make a claim, unless:

• a reasonable excuse notice has been issued, the worker is seeking weekly payments of compensation and the reasonable excuse is still relevant,
• compensation is likely to be claimed beyond the provisional liability limits and the insurer determines that there is insufficient information to determine ongoing liability, or
• the injury is a relevant injury.^*

The insurer can waive the requirement for a worker to submit a claim form if they determine they have enough information to accept liability.

^* Claim requirements for relevant injuries are provided in Part 8A, Division 2 of the 2016 Regulation.

3.3 Signed authority

Section 260(3) of the 1998 Act allows the Guidelines to require that a claim be accompanied by a form of authority signed by the worker.

Information relevant to the worker’s injury includes:

• the treatment or service provided, or
• the worker’s medical condition, or
• treatment relevant to the claim.

This authority is in the claim form available on the SIRA website. Alternatively, the insurer can use its own form.

3.4. Incomplete claim

Section 260(7) of the 1998 Act allows the Guidelines to require an insurer to notify a worker of a failure to comply with a requirement for making a claim.

If the insurer receives an incomplete claim or a claim that does not otherwise meet the requirements of these Guidelines, the insurer must notify the worker.

Written notification of an incomplete claim^** must be given to the worker (and legal representative, if the worker is represented) within 3 business days of receiving the incomplete claim, specifying the additional information needed.

^** Clause 42G of the 2016 Regulation specifies requirements for insurers that receive an incomplete relevant injury claim.

Part 4: Compensation for medical, hospital, and rehabilitation expenses

4.1 Accessing treatment without pre-approval

Medical, hospital and rehabilitation expenses will be paid where the treatment or service:

• meets the definitions described in section 59 of the 1987 Act
• takes place while the worker is entitled to receive compensation (the compensation period) for medical, hospital and rehabilitation expenses
• is reasonably necessary, and
• is pre-approved by the insurer (unless the treatment or service is exempt from pre-approval – see below).

Section 60(2A) of the 1987 Act allows the Guidelines to specify the types or classes of treatment or services that are exempt from the requirement for prior insurer approval.

Tables 4.1 and 4.2 specify the reasonably necessary treatments and services the worker can receive without pre-approval from the insurer.

4.2 Determining reasonably necessary treatment

Before approving or paying for a medical, hospital or rehabilitation treatment or service, an insurer will determine, based on the facts of each case, whether the treatment or service is, as a result of an injury, reasonably necessary.

Section 60(2C)(a) of the 1987 Act allows for the Guidelines to set rules for determining whether medical or related treatment, as defined by section 59 of the 1987 Act, is reasonably necessary.

When considering the facts of the case, the insurer is to understand that:

• what is determined as reasonably necessary for one worker may not be reasonably necessary for another worker with a similar injury
• reasonably necessary does not mean absolutely necessary
• although evidence may show that a similar outcome could be achieved by an alternative treatment, it does not mean that the treatment recommended is not reasonably necessary.

In most cases, the points above should be enough for an insurer to determine what is reasonably necessary treatment.

If the insurer remains unclear on whether a treatment is reasonably necessary, then the following factors may be considered:

• the appropriateness of the particular treatment
• the availability of alternative treatment
• the cost of the treatment
• the actual or potential effectiveness of the treatment
• the acceptance of the treatment by medical experts.

4.3 Qualifications and requirements for treatment or service providers

Section 60(2C)(e) of the 1987 Act states that the Guidelines may specify the qualifications or experience required in order to be appropriately qualified to provide treatment or service to a worker. This includes mandating SIRA approval or accreditation for providers operating in the NSW workers compensation system.

Services provided by a physiotherapist, chiropractor, osteopath, exercise physiologist, psychologist and counsellor can only be provided by an allied health provider that is approved by SIRA in accordance with the Guidelines for approval of treating allied health practitioners. These services require the submission of an Allied Health Treatment Request (AHTR) in accordance with those guidelines. Note: an AHTR is optional for practitioners treating workers with a severe injury.

Assessment, diagnosis and treatment of hearing impairment loss injury are to be conducted by an ear nose and throat (ENT) specialist.

Subsequent services in relation to the provision of hearing aids can only be delivered by a SIRA-approved hearing service provider in accordance with the Hearing Services Provider Approval Framework.

4.4 Domestic assistance care plan

Section 60AA(1)(d) of the 1987 Act allows the Guidelines to provide for the making of a domestic assistance care plan.

The domestic assistance care plan must clearly state the:

• task(s) it covers
• service provider’s name
• number of hours and frequency of assistance
• start and end dates for which the assistance is approved
• cost or rate payable for the assistance
• total cost for the duration of service
• need for the domestic assistance recommended and how this relates to the worker’s injury.

4.5 Verifying gratuitous domestic assistance

Gratuitous domestic assistance is domestic assistance provided to a worker for which the worker has not paid and is not liable to pay.

Payment for gratuitous domestic assistance is only to be made if those costs and the provision of the assistance is properly verified.

Section 60AA(5)(b) allows the Guidelines to specify how the performance of domestic assistance services is to be verified.

Information to verify the provision of domestic assistance might include:

• pay slips showing fewer hours of overtime or of casual work, with a supporting letter from their employer
• evidence that they have moved from full-time to part-time work
• a certified copy of a letter of resignation or termination, giving reasons.

The amount of lost income or foregone employment is not relevant to the amount of compensation that may be provided to the person.

The provider of gratuitous domestic assistance is to be paid a proper and reasonable amount for the services provided.

4.5.1 Verifying and approving payment for gratuitous domestic assistance

The person providing the assistance may make a claim and the insurer may make a payment for eligible services as they are provided.

Once approved, the insurer must pay the person providing the assistance, not the worker.

Providers of gratuitous domestic assistance must submit a diary of what they have done before the insurer approves and pays compensation. The diary must be signed by both the provider and the worker (if the worker is able to do so).

As a minimum, the diary must include the date, services performed and hours worked.

Part 5: Work capacity assessment

A work capacity assessment is an assessment of an injured worker’s current work capacity.

5.1 Work capacity assessment

Section 44(A)(2) of the 1987 Act states that a ‘work capacity assessment’ is to be conducted in accordance with the Guidelines.

A work capacity assessment can be based on available information (such as a certificate of capacity), or the insurer may need to gather additional information, for example when the worker has some capacity but cannot return to their pre-injury employment.

The insurer must keep a record of any work capacity assessment in the worker’s file.

5.2 When to conduct a work capacity assessment

Work capacity assessments are to be conducted throughout the life of the claim whenever new information about the worker’s claim, such as a certificate of capacity, is received. This is a part of the normal claims management process.

These assessments may be based on available information or may require the gathering of additional information.

5.3 Requirement to attend appointments

Section 44A(5) of the 1987 Act states that an insurer may, in accordance with the Guidelines, require a worker to attend and participate in any appointment in accordance with the Guidelines that is reasonably necessary for the purpose of conducting a work capacity assessment.

The insurer is required to advise the worker of the date and time of each appointment at least 10 working days before the appointment, unless otherwise agreed by the worker. The advice must include:

• the location of the appointment
• the purpose of the appointment and how it may inform the work capacity assessment
• the information that refusing to attend, or failing to properly participate (so that the assessment cannot take place), may result in the insurer suspending weekly payments until the assessment appointment is completed
• that the insurer will meet any reasonable costs incurred by the worker, including wages, travel and accommodation expenses. This may include pre-payment of travel and accommodation expenses. If the worker is not reasonably able to travel unescorted, this may include expenses for the worker’s escort.
• information on how to contact the insurer to request a change of appointment time or other appointment arrangements
• contact information for the Independent Review Officer (IRO).

The insurer must consider whether the requirement to attend an appointment is reasonable in the circumstances.

Assessments must be conducted in person except in limited or special circumstances. Assessments may only be conducted by video consultation if an in-person assessment is not required and is approved by the insurer. Each request for assessment to be conducted by video consultation will be considered by the insurer on a case-by-case basis.

A worker cannot be required by the insurer to attend more than four appointments per work capacity assessment. Of these, there cannot be more than:

• one appointment with the same type of medical specialist (for example, orthopaedic surgeon, psychiatrist)
• one appointment with the same type of healthcare professional (for example, physiotherapist, psychologist).

If the worker is required to attend an appointment with an independent medical examiner, this must be in accordance with Part 7 of these Guidelines.

Part 6: Injury management consultants

Section 45A(4) of the 1998 Act allows the Guidelines to provide for the functions of approved injury management consultants (IMCs).

An IMC is a registered medical practitioner experienced in occupational injury and workplace-based rehabilitation.

An IMC is a facilitator who helps the nominated treating doctor, worker, insurer, employer and other service providers to progress a worker's recovery at/return to work and optimise health and work outcomes. An IMC assesses the situation, examines the worker (if necessary) and discusses possible solutions with the relevant parties. The IMC mediates with parties to seek agreement on actions and outcomes. IMCs are not responsible for directing treatment of a worker, though they may comment on treatment in respect to overcoming barriers to recovery at/return to work.

An IMC may conduct a file review where a referrer identifies the need for an injury management consultation but does not consider it necessary for the IMC to examine the worker.

An IMCs functions do not include:

• an opinion on causation or liability
• undertaking a functional capacity evaluation, or work capacity assessment (as defined in section 44A of the 1987 Act) for the insurer.

6.1 IMC functions relating to the nominated treating doctor

The IMC must verbally discuss the worker’s fitness for work with the nominated treating doctor. The IMC may also discuss the following with the worker’s nominated treating doctor:

• diagnosis and treatment (if the IMC agrees this is required) to overcome barriers to recovery at/return to work
• suitability of potential work options
• how the NSW workers compensation system operates
• the importance of timely, safe and durable recovery at/return to work
• obtaining agreement on fitness for work, prognosis for recovery and timeframes for the recover at work plan.

6.2 IMC functions relating to the worker

The IMC may discuss recovery at/return to work with the worker, including:

• their recovery from the injury
• their expectations regarding recovery at/return to work
• the importance of timely, safe and durable return to work, and the potential impact resulting from long-term absence from work on the worker’s health
• relevant aspects of the workers compensation system
• ways to overcome problems at work which may be delaying the worker’s recovery/return to work
• options for their return to work (including a possible teleconference with the nominated treating doctor).

The IMC may talk to the worker as part of a file review, and/or examine the worker to aid their evaluation of the worker’s ability to undertake specific tasks or functions, if this will contribute to achieving recovery and return to work outcomes.

Where a worker has a union-representative involved in their return to work, the IMC will include that representative in discussions with the worker, at the worker’s request.

6.3 IMC functions relating to the employer

The IMC may communicate with the employer to confirm the suitability and availability of identified work. Where appropriate, they may also review the workplace to help facilitate appropriate return to work solutions.

6.4 IMC functions relating to other service providers

The IMC may liaise with other service providers to discuss aspects of the worker’s recovery at/return to work.

6.5 IMC functions relating to the Personal Injury Commission

A worker or employer can request the Personal Injury Commission (the Commission) to resolve a dispute about a failure to comply with obligations imposed by Chapter 3 of the 1998 Act, such as return to work obligations of insurers, employers and workers.

If there is an application to resolve a dispute, the Commission may request an IMC to conduct a workplace assessment.

For further information please refer to the Commission website at www.pi.nsw.gov.au.

6.6 The IMC report

The IMC is required to complete a report following a consultation or file review. The report should be provided to the referrer within 10 working days of the appointment or file review, or a different timeframe if agreed between the parties.

A copy of the report must be forwarded to the:

• nominated treating doctor
• insurer
• the worker (unless release of the report would pose a serious threat to the life or health of the worker or any other person).

A copy of the report may also be provided to the employer and any other party, if involved in the injury management consultation.

As a minimum, the report is to include:

• worker details (name, date of birth, claim number)
• referrer and reason for referral
• documents reviewed
• date of consultation/review, including who attended the consultation (for example, interpreter, support person) and whether the consultation was face-to-face or a file review
• consultation with the nominated treating doctor, including:
  • discussion regarding return to work/fitness for work
  • any other discussions to progress the workers recovery at/return to work and optimise health outcomes
• consultation with the employer, including the availability of suitable work and any other relevant issues
• consultation with any other parties (for example, workplace rehabilitation provider or treatment providers)
• the outcome of discussions
• consultation with and examination of the worker (where required)
• an action plan:
  • summarising the action taken and the agreed outcomes with the parties involved, including timeframes and milestones to reach the outcome
  • if agreement is not reached, suggest alternative actions to the referrer (for example, referral for an independent medical examination or referral to an approved workplace rehabilitation provider).

Part 7: Independent medical examinations and reports

An independent medical examination (IME) is an assessment conducted by an appropriately qualified and experienced medical practitioner to help resolve an issue in injury or claims management.

An insurer may direct a worker who has given notice of an injury or is receiving weekly payments of compensation to attend an IME.

Section 119(4) of the 1998 Act allows the Guidelines to specify the requirements for arranging an IME.

The mandatory obligations for insurers when they require a worker to attend an IME are outlined below.

7.1 Reason for referral

A worker can be referred for and required to attend an IME when information from the treating medical practitioner(s) is inadequate, unavailable or inconsistent, and the referrer is unable to resolve the problem directly with the practitioners.

Evidence of contact (or multiple attempts to contact) to try to resolve these issues with the nominated treating practitioner must be documented on the claim file.

An IME is appropriate where the information required relates to:

• diagnosis of an injury reported by the worker
• determining the contribution of work incidents, duties and/or practices to the injury
• whether the need for treatment results from the worker’s injury and is reasonably necessary
• recommendations and/or need for treatment
• capacity for pre-injury duties and hours
• the likelihood of and timeframe for recovery
• capacity for other work/duties (descriptions of such duties are to be provided to the independent medical examiner)
• what past and/or ongoing incapacity results from the injury
• physical capabilities and any activities that must be avoided.

The reason for the referral must be documented on the claim file.

An insurer may also refer a worker for an independent medical examination for the purpose of obtaining an assessment of permanent injury (injuries before 01/01/2002) or permanent impairment (injuries on and after 01/01/2002) resulting from the injury.

7.2 Qualified and appropriate independent medical examiners

Independent medical examiners must be appropriately qualified medical practitioners with the expertise to adequately respond to the question(s) outlined in the referral. They must have qualifications relevant to the treatment of the worker’s injury.

If the referral includes a question of causation or treatment, the independent medical examiner is to be in current clinical practice or have recently been in clinical practice, or undertake professional activities such that they are well abreast of current clinical practice.

7.2.1 Permanent impairment assessors

If the referral is for an assessment of permanent impairment, the referral must be to a specialist medical practitioner with qualifications, training and experience relevant to the body system being assessed.

The assessor must have successfully completed training and be listed on the SIRA website as a trained assessor of permanent impairment with SIRA workers compensation.

If there is more than one impairment that requires assessment by different medical specialists, one specialist must be nominated as the lead assessor and determine the final amount of whole person impairment.

7.3 Conflict of interest

The independent medical examiner must not be in a treating relationship with the worker, nor must there be any conflict of interest between the medical practitioner and worker or medical practitioner and insurer.

The exception to this is an assessment of permanent impairment, where a worker may be assessed by their treating specialist medical practitioner if they are listed for the relevant body system on the SIRA website.

7.4 Special requirements

The location of the independent medical examiner’s rooms is to be accessible within the worker’s travel restrictions as certified by their nominated treating doctor.

Examinations must be conducted in person except in limited or special circumstances. Examinations may only be conducted by video consultation if an in-person assessment is not required and is approved by the insurer. Each request for examination to be conducted by video consultation will be considered by the insurer on a case-by-case basis.

If the worker has special requirements relating to gender, culture or language, these are to be identified and accommodated.

The rooms must contain appropriate facilities, including access for people with ambulatory difficulties, and accommodate the worker’s specific physical needs.

Where it is the assessor’s routine practice to record the consultation on audio or video, the worker must be informed of this and agree before the appointment is scheduled. If the worker does not consent and the independent medical examiner will not proceed without recording the consultation, then an alternative independent medical examiner who will not record the examination is to be arranged.

The worker may be accompanied by a person other than their legal representative, however, the accompanying person must not participate in the examination and may be required to withdraw from the examination if requested.

7.5 Notification to the worker

All referrals for IMEs are to be arranged at reasonable times and dates, and with adequate notification given to the worker.

The worker must be advised in writing at least 10 working days before the examination takes place. Additional notice should be considered for rural/regional workers.

If a shorter time is required because of exceptional and unavoidable circumstances (for example a need to consider an urgent request for treatment), the reduced timeframe must be agreed to by all parties.

The written advice to the worker must include:

• the specific reason for the examination
• an explanation of why information from the treating medical practitioner(s) or author of the assessment report to the insurer’s enquiry was inadequate, inconsistent or unavailable
• date, time and location of the appointment
• name, specialty and qualifications of the independent medical examiner
• contact details of the independent medical examiner’s offices and appropriate travel directions
• the likely duration of the examination
• what to take to the appointment (for example, x-rays, reports of investigations/tests, comfortable clothing to enable an appropriate examination to be conducted)
• information that the worker may be accompanied by a person other than their legal representative, however, the accompanying person must not participate in the examination and may be required to withdraw from the examination if requested
• advice when it is the independent medical examiner’s routine practice to record the examination on audio or video; and that the worker must either consent to or decline this before the examination. The recording is only to proceed if the worker consents.
• advice that the insurer will meet any reasonable costs incurred by the worker, including wages, travel and accommodation. This may include pre-payment of travel and accommodation expenses. If the worker is not reasonably able to travel unescorted, this may include expenses for the worker’s escort.
• advice that a failure to attend the examination or an obstruction of the examination may lead to a suspension of:
  • ­ weekly compensation, and/or
  • ­ the right to recover compensation under the 1987 Act.
• advice that the worker can request a copy of the report as well as documents that were provided to the IME
• advice that their nominated treating doctor will be provided with a copy of the examination report
• advice that the workers compensation legislation gives the worker or a nominee a right to a copy of any report relevant to a decision made by a referrer to dispute liability for or reduce compensation benefits
• what to do if the worker does not believe the examination is reasonable
• what to do if the worker has a complaint about the conduct of the independent medical examiner.

7.6 Further independent medical examinations

Subsequent IMEs must meet the reasons for referral for an independent medical examination and can only be conducted in the following situations:

• the employer/insurer has evidence that the worker’s injury has significantly changed or resolved, or
• the employer/insurer has a request for, or evidence of, a material change or need for material change in the manner or type of treatment, or
• the worker makes a claim for permanent impairment or work injury damages, or
• the worker requests a review after receiving a notice (issued under section 78 of the 1998 Act) and includes additional medical information that the employer/insurer is asked to consider, or
• the last IME was unable to be completed, or
• it has been at least six months since the last IME required by the employer/insurer, or
• the referrer can provide significant reasoning for the need for a referral in a shorter timeframe. This reasoning must be documented in the claim file and provided in the written advice to the worker regarding the referral.

Subsequent IMEs must be with the same independent medical examiner unless:

• that examiner has ceased to practise (permanently or temporarily)
• the specialty required to assess the injury has changed
• they no longer practise in a location convenient to the worker, or
• both parties agree that a different medical practitioner is required.

7.7 Unreasonable request

The insurer must consider whether the requirement to attend an IME is reasonable in the circumstances.

If the worker considers the requirement to attend an IME unreasonable, they are to advise the insurer of the reasons for their objection.

The insurer must consider this objection and advise the worker of their decision following this consideration. This advice must include contact information for the Independent Review Office (IRO). Benefits are not to be affected prior to adequate written notice being received by the worker.

Any decision to suspend payment of weekly compensation can only be made after the worker has had an opportunity to comply with a reasonable request. This decision must be made on the basis of sound evidence, and the worker must be advised in writing of the reasons for the suspension and what they must do for weekly payments to be reinistated.

Part 8: Lump sum compensation

8.1 Relevant particulars about a claim

Section 282(1) of the 1998 Act states that ‘the relevant particulars about a claim’ are full details that enable the insurer (as far as practicable) to make a proper assessment of the claimant’s entitlement. Section 282(1)(g) allows these Guidelines to specify any further relevant particulars about a claim.

8.1.1 For injuries received on or after 1 January 2002

A claim for lump sum compensation must be accompanied by a report from a permanent impairment assessor listed on the SIRA website, for the body system(s) being assessed.

The assessor’s report must include:

• a statement about whether the condition has reached maximum medical improvement
• an assessment of the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (version current at the time of the assessment)
• where the claim relates to hearing loss, a copy of the audiogram used for the medical report.

8.1.2 For injuries received before 1 January 2002

A claim for lump sum compensation must include:

• the percentage of loss or impairment of an injury described in the Table of disabilities (see the Workers Compensation Benefits Guide available on the SIRA website)
• a medical report from a medical practitioner supporting the amount of loss or impairment claimed
• if the claim relates to hearing loss, a copy of the audiogram used for the medical report.

Part 9: Commutation of compensation

9.1 Compensation not to be commuted for catastrophic injuries

The effect of section 87EAA of the 1987 Act is that a liability for medical, hospital and rehabilitation expenses compensation cannot be commuted to a lump sum for workers with a catastrophic injury.

An injury is a catastrophic injury if it meets the criteria for one or more kinds of injury specified below.

9.1.1 Spinal cord injury

A spinal cord injury is an acute traumatic lesion of the neural elements in the spinal canal (spinal cord and cauda equina) resulting in permanent sensory deficit, motor deficit and/or bladder/bowel dysfunction. There must be permanent neurological deficit resulting from the spinal cord injury.

9.1.2 Brain injury

A traumatic brain injury is an injury to the brain, usually with an associated diminished or altered state of consciousness that results in permanent impairments of cognitive, physical and/or psychosocial functions.

Criteria for brain injury

1. The duration of Post Traumatic Amnesia (PTA) is greater than one week. If PTA assessment is not available or applicable, there must be evidence of a very significant impact to the head causing coma for longer than one hour, or a significant brain imaging abnormality, and
2. a score of five or less on any of the items on the FIM™ or WeeFIM® due to the brain injury.

9.1.3 Amputations

There are multiple amputations of the upper and/or lower extremities, meaning that there is more than one of the following types of amputation at or above the level of:

1. a ‘short’ transtibial or standard transtibial amputation, as defined by the loss of 50 per cent or more of the length of the tibia. This includes all other amputations of the lower extremity (such as knee disarticulation or transfemoral amputation) above this level
2. a thumb and index finger of the same hand, at or above the first metacarpophalangeal joint. This includes all other amputations of the upper extremity (such as below-elbow or above-elbow amputation) above this level.

The worker has had one of the following types of amputation:

1. forequarter amputation (complete amputation of the humerus, scapula and clavicle) or shoulder disarticulation;
2. hindquarter amputation (hemipelvectomy by trans-section at sacroiliac joint, or partial pelvectomy);
3. hip disarticulation (complete amputation of the femur);
4. ‘short’ transfemoral amputation as defined by the loss of 65 per cent or more of the length of the femur;
5. brachial plexus avulsion or rupture resulting in partial or total paralysis, or
6. an equivalent impairment to any of the injuries described in (c) to (g) above.

Equivalent impairment means the functional equivalent to an amputation, resulting from an injury such as (but not limited to) brachial plexus avulsion or rupture, where paralysis exists and movement in the paralysed limb, or relevant part therefore, is minimal or non-existent due to the injury.

Measurement of the percentage loss of length of the amputated tibia or femur is to be calculated using x-ray imaging pre- and post-amputation. Where x-ray imaging is not available, measurement of the contralateral length of the femur is to be compared with the length of the amputated femur to measure percentage loss.

There may be rare circumstances, such as traumatic bilateral transtibial amputation, where contralateral tibial length and tibial length prior to amputation is unknown and therefore percentage measurement is not applicable. In this case, percentage loss is defined as 50 per cent of tibial length calculated from estimated knee height. Estimated knee height is to be calculated from the worker’s documented total height prior to the injury.

9.1.4 Burns

There are full thickness burns greater than 40 per cent of total body surface area, or

1. inhalation burns causing long term respiratory impairment, or
2. full thickness burns to the hand, face or genital area, and
3. one of the following criteria is met:
4. a score of five or less on any of the items on the FIM™ or WeeFIM® due to the burns.

9.1.5 Permanent blindness

The worker is legally blind, when:

1. visual acuity on the Snellen Scale after correction by suitable lenses is less than 6/60 in both eyes, or
2. field of vision is constricted to 10 degrees or less of arc around central fixation in the better eye irrespective of corrected visual acuity (equivalent to 1/100 white test object), or
3. a combination of visual defects resulting in the same degree of visual loss as that occurring in (a) or (b) above.

Part 10: Pre-injury average weekly earnings

10.1 Pre-injury average weekly earnings of apprentices, trainees and young people

Clause 5(4) of Schedule 3 to the 1987 Act states that the Guidelines may make provision for the matters to be taken into account to determine the weekly earnings a worker is likely to have been entitled to in a week had the injury not occurred and they had continued in the employment.

Apprentices, trainees and young people who are entitled to weekly payments must have their pre-injury average weekly earnings (PIAWE) adjusted at each age or stage after their injury when such an increment is due.

When adjusting the PIAWE, the insurer is to assess against the considerations included in table 10.1.

In addition to the considerations in table 10.1, insurers are to also consider the following in adjusting PIAWE for apprentices, trainees and young people:

• Relevant allowances (if any) that would have been payable to the worker had they not been injured.
• Overtime hours and shift work performed prior to the injury. These should be included at the rate applicable at the time any increase in PIAWE is determined. This is to reflect the pattern of overtime and shift work prior to injury, as identified when PIAWE is first determined for the worker.

The new PIAWE is calculated to take effect from:

• with respect to apprentices and trainees, the anniversary from commencement of the workers apprenticeship or training, or
• with respect to young people, each birthday after the workers injury until they reach the age of 21 years (where an increment is applicable).

10.2 Determining whether a benefit has been provided and whether the worker is entitled to use of the benefit

Clause 6(4) of Schedule 3 to the 1987 Act states that the Guidelines may make provision for the matters to be taken into account to determine whether a non-monetary benefit has been provided to a worker and whether the worker is entitled to the use of that benefit.

When determining if a benefit has been provided to a worker, an insurer should consider any tax reporting records kept by the employer about that worker.

An employer is obliged to record the value of fringe benefits provided to their workers for Australian Tax Office reporting purposes. They may also have to report the notional value of some benefits which are exempt from fringe benefits tax.

A worker is considered to have been provided with a benefit if they have use of the benefit at the date of the injury.

Where a benefit has been provided to a worker for the performance of work by the worker, which expressly provides a personal benefit to the worker, it should be included in the worker's PIAWE from the date that the benefit has been relinquished by the worker or withdrawn by the employer post-injury.

The insurer is to consider the following to ascertain whether a worker is entitled to the use of a benefit:

• if a worker continues to have access to the benefit for personal use
• whether the provision of the benefit/s are specified in the worker's contract of employment
• other evidence in writing from the worker and/or the employer.

If a benefit was provided or removed during the relevant earning period, written evidence is to be requested from the employer about the change. This is to include the date of effect of the change.

If a worker has relinquished, or an employer has withdrawn, a benefit post injury, the insurer is to request written evidence from the worker and/or the employer including the date which this took effect, to enable the insurer to promptly re-calculate PIAWE.

10.3 Monetary value of non-monetary benefits

Schedule 3, clause 7(1)(b) of the 1987 Act states that the Guidelines may specify matters to be considered when determining an an amount that would reasonably be payable for a non-monetary benefit that is not a fringe benefit or not otherwise subject to fringe benefits tax.

When fringe benefits tax does not apply to a non-monetary benefit (for example, benefits provided to employees of most not-for-profit organisations) the insurer must determine a reasonable value for that non-monetary benefit. The reasonable value is to be determined as a pre-tax value expressed as a weekly amount.

Insurers are to refer to the following when determining the monetary value of a non-monetary benefit:

• Pay As You Go (PAYG) summaries provided to the worker, or accounting / tax return information for working directors
• the worker's contract of employment
• records kept by the employer as to the value of the non-monetary benefit
• any records kept by the worker

Insurers may consider other available information where appropriate to do so.

10.3.1 Residential accommodation not subject to fringe benefits tax

If a worker is provided with residential accommodation which is not subject to fringe benefits tax, the monetary value is the amount that would reasonably be payable for that accommodation or equivalent accommodation in the same area, if it were let on commercial terms, as a weekly rate.

To establish the value as a weekly rate the insurer is to have regard to relevant real estate guide information for rental properties in a similar location and size to that provided to the worker by the employer during the relevant earning period.

Part 11: Information to be made available to workers

11.1 Approved form of information

Section 231 of the 1998 Act and clause 39 of the Workers Compensation Regulation 2016 require that employers must ensure information on the summary of the Act and insurance details is made available to their workers.

The information to be made available includes:

• A summary of the requirements on giving notice of an injury.
• A summary of the requirements for making a claim.
• Details of the employer’s workers compensation insurer or a statement that they are self-insured.
• Section 231(4) of the 1998 Act states that the Workers Compensation Guidelines may provide the form of the information required to be made available.
• The information must be in writing and in the approved form.
• The approved form for the purposes of section 231(4) is available for download or printing on the SIRA website. Employers may use the approved form or design their own, provided it includes the required information.

Appendix A: Application to exempt workers

The following table provides detail on which parts of the Guidelines apply to exempt workers (police officers, paramedics and firefighters), including where modified Guidelines apply.