- Workers Compensation Act 1987
- Workplace Injury Management and Workers Compensation Act 1998
- Workers' Compensation (Dust Diseases) Act 1942
- Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987
- Workers Compensation Regulation 2016
- Workers Compensation (Dust Diseases) Regulation 2018
- Workers Compensation (Bush Fire, Emergency and Rescue Services) Regulation 2017
- Workers compensation guidelines
- NSW workers compensation guidelines for the evaluation of permanent impairment
- Workers compensation medical dispute assessment guidelines
- Guidelines for workplace return to work programs
- Workers compensation market practice and premiums guidelines
- Guidelines for the approval of treating allied health practitioners 2016 No 2
- Workers compensation licensed insurer business plan guidelines
Standards of practice
- Overarching claims management principles
- Standard of practice principles
- S1. Worker consent
- S2. Worker access to personal information
- S3. Initial liability decisions – general, provisional, reasonable excuse or full liability
- S4. Liability for medical or related treatment
- S5. Recurrence or aggravation of a previous workplace injury
- S6. Recoveries
- S7. Interim pre-injury average weekly earnings calculation
- S8. Insurer making weekly payments
- S9. Reduction in payments of compensation
- S10. Payment of invoices and reimbursements
- S11. Changes in capacity
- S12. Injury management plans
- S13. Additional or consequential medical conditions
- S14. Referral to an injury management consultant
- S15. Approval and payment of medical, hospital and rehabilitation services
- S16. Case conferencing
- S17. Section 39 Notification
- S18. Retiring age notification
- S19. Section 59A notification
- S20. Permanent impairment assessment reports
- S21. Negotiation on degree of permanent impairment
- S22. Insurer participation in disputes and mediations
- S23. Recovery of overpayments due to insurer error
- S24. Factual investigations
- S25. Surveillance
- S26. Arrangement for payments to Medicare Australia
- S27. Notification and recovery of Centrelink benefits from lump sum payments
- S28. Interpreter services
- S29. Cross-border provisions
- S30. Closing a claim
- S31. Death claims
- S32. Managing claims during the COVID-19 pandemic
- Workers compensation benefits guide
- Fees and rates orders
- Standards of practice
S32. Managing claims during the COVID-19 pandemic
Insurers are to adopt a flexible and adaptable approach to claims management during the COVID-19 (Coronavirus) pandemic. This will deliver a tailored approach that meets the needs of workers, employers and other system participants.
Insurers will be flexible and adaptable during the COVID-19 pandemic and ensure that claims are managed with empathy and transparency, making liability decisions and paying entitlements without delay.
Following notification of an injury where the worker has a diagnosis of COVID-19, the insurer is to proactively contact all parties as soon as possible to discuss:
Evidence on claim file
(Applying the presumption)
For each claim notified for COVID-19, the insurer is to:
If further information is required to determine liability (including whether the presumption applies, or where the presumption doesn’t apply but where there is a high risk of exposure), the insurer is to:
Note: If the insurer has a reasonable excuse for not starting provisional weekly payments in accordance with Part 2.1 of the Workers Compensation Guidelines, this is to be clearly documented on the claim file.
Evidence on claim file
(Full liability decision)
Insurers are to:
Note: An insurer is not prevented from accepting liability before the end of the provisional liability period (section 278 of the 1998 Act).
Evidence on claim file
Liability determined within 21 days of a claim being made, or before the end of the provisional period (whichever is the later)
(JobKeeper Payment scheme)
Insurers are to determine the impact, if any, to weekly payments as a result of the JobKeeper Payment scheme.
The insurer is required to:
Note: The employer’s eligibility to claim the JobKeeper payment on behalf of their workers is determined by the Australian Tax Office. Changes in work capacity may affect a worker’s eligibility for the JobKeeper payment. Insurers will need to prepare workers for changes in earnings once JobKeeper payments cease.
Evidence on claim file
Information provided to the worker and employer within 5 working days of changes to weekly payments due to JobKeeper; or as soon as reasonably practicable
Insurers are to ensure that workers impacted by the COVID-19 pandemic continue to receive weekly payment entitlements without delay or interruption.
The insurer is to inform the worker that certificates of capacity:
Note: SIRA would consider the COVID-19 pandemic to be a 'special reason' for the purposes of section 44B(4) of the 1987 Act.
|Evidence on claim file, and/or information publicly available that an injured worker can easily access|
(Weekly payments in advance)
The insurer can, if appropriate, use discretion to agree to payment of weekly payment entitlements in advance (up to six weeks), as long as:
The insurer is to consider the impact of JobKeeper payments and whether this would impact the amount of weekly payments.
|Evidence on claim file|
|The insurer is to ensure that the worker is informed of additional options available to them to access treatment during the COVID-19 pandemic, where appropriate. This includes advice to the worker about options for accessing treatment, including use of telehealth or videoconferencing.||Evidence on claim file|
(Recovery at work support)
When an insurer becomes aware a worker’s ability to maintain suitable work is affected by the COVID-19 pandemic, the insurer is to, where appropriate, proactively contact the worker and employer to:
|Evidence on claim file|
(Independent consultations, work capacity assessments)
When scheduling an independent assessment (including an injury management consultant service, independent consultant service, or work capacity assessment appointment), the insurer is to:
|Evidence on claim file or claims procedure process|
(Independent Medical Examinations and assessments of permanent impairment)
When scheduling an Independent Medical Examination (IME) for a worker, the insurer is to:
In circumstances where an IME has been delayed or postponed due to the COVID-19 pandemic, and a worker’s entitlements will be impacted, the insurer is to:
Note: In some circumstances, the insurer will need to give notice in accordance with section 78 of the 1998 Act.
|Evidence on claim file and/or evidence of arrangements with IME providers|
This standard applies to all claims during the COVID-19 pandemic from 26 June 2020.
Note: S32.1, 32.2, and 32.3 apply only to claims made for COVID-19 (i.e. the worker has been diagnosed with COVID-19).
The situation in relation to COVID-19 (Coronavirus) continues to evolve. It has changed the way we live, work and connect with family, friends and colleagues.
Several changes and adaptations have been implemented in the NSW workers compensation system in response to COVID-19. These changes have focused on reducing regulatory barriers in the context of the COVID-19 public health restrictions and the continuity of workers compensation system operations, to ensure workers supported through their recovery and return to work. The changes include:
- amendment to the workers compensation legislation which enable second and subsequent certificates of capacity to be issued by approved treating physiotherapists and psychologists with effect from 17 April 2020 (see GN 3.3 Certificate of capacity)
- expanded telehealth arrangements to minimise social contact and facilitate continued treatment and care for workers
- modifications to SIRA funded recovery at work programs to ensure workers and employers are supported with recovery at work, as well as development of two new programs (Connect2work and JobCover6) specifically targeted to assist injured people and employers in response to COVID-19 (see SIRA funded programs)
- amendments to the Workers compensation guidelines (Guidelines) with effect from 17 April 2020 to reduce regulatory barriers and provide clarity regarding an insurer’s approach to work capacity assessment appointments and independent medical examinations.
Further, on 14 May 2020, the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (Amendment Act) commenced. The Act makes amendment to the workers compensation legislation to establish a presumption that workers in prescribed employment who contract COVID-19 have contracted the disease during the course of employment, and that their employment was the main or substantial contributing factor to contracting the disease.
It is important that insurers adopt a flexible and adaptive approach to managing claims in the current environment. The insurer’s approach should consider:
- the individual circumstances and impacts to the worker, the employer, as well as other system participants
- the legislative and regulatory framework, including changes and adaptations that have been implemented
- the broader state and Commonwealth landscape, including amendments to other legislation, public heath orders or government programs (such as the JobKeeper program) which may impact the operation of the workers compensation system.
Liability decisions for COVID-19 claims
COVID-19 may be considered under the disease provisions of the Workers Compensation Act 1987 (1987 Act). For most workers, injury is defined in section 4 of the 1987 Act to include disease injury, which means a disease that is contracted in the course of employment, but only if the employment was the main contributing factor to contracting the disease. For exempt categories of workers including police officers, paramedics and firefighters, employment must be a substantial contributing factor to the contraction of the disease.
Public concern about supporting workers at higher risk of exposure (including doctors, nurses, and other health workers) and who are protecting the community from COVID-19 is well-placed.
Recent legislative changes introduced a presumption that workers who contract COVID-19 and who work in certain types of employment have contracted COVID-19 in the course of their employment and that employment was the main contributing factor, or substantial contributing factor for exempt workers. The presumption applies unless the contrary is established, that is, if there is evidence that can establish the worker has not contracted COVID-19 due to his or her employment.
Insurers should take steps to ensure liability is determined promptly (either provisionally or in full) and entitlements processed quickly. This includes gathering relevant information following notification of an injury for COVID-19 to determine whether the presumption applies, and/or commencing provisional payments to enable timely access to weekly and medical payments.
Where the insurer has enough information to determine full liability, they should do so and not wait until the expiry of the relevant statutory timeframe or provisional period. Under the workers compensation legislation, there are timeframes within which full liability needs to be determined by the insurer. This is generally 21 days, or in the event a claim for weekly payments has been accepted provisionally, the insurer is required to determine the claim (by either accepting or disputing liability), before the end of the provisional period.
For some workers, the processing of weekly payments may be impacted due to additional challenges with obtaining a current certificate of capacity. It is important that insurers consider the individual circumstances of each worker. Any modified arrangements should be made in consultation with the worker and employer to ensure weekly payments are not interrupted or delayed. Recent changes mean that from 17 April 2020, workers can now obtain a second or subsequent certificate of capacity from their treating physiotherapist or psychologist. Workers can also obtain a certificate of capacity for a period of longer than 28 days if special reasons (such as the COVID-19 pandemic) exist.
Weekly payments in advance
Some workers may be affected by a loss of employment and income due to the pandemic. In some circumstances, for instance, if a worker is facing financial hardship, it may be appropriate for the insurer to expedite processing of weekly payment entitlements in advance.
Some workers may be entitled to the JobKeeper payment, which was introduced by the Federal government to support businesses affected by the significant economic impact caused by COVID-19. An employer who has applied for JobKeeper is required to submit claims for JobKeeper on a fortnightly basis and is paid the JobKeeper amount in arrears.
For the purpose of determining weekly payment compensation, any JobKeeper payment made to a worker who has current work capacity may be considered earnings for the purposes of determining the weekly payment of compensation to which the worker is entitled. If a worker has no current work capacity, they will not be entitled to receive the JobKeeper payment.
Some employers may no longer be able to provide suitable work to their workers due to the impact of the pandemic. If this is the case, the worker may still receive the JobKeeper payment.
Circumstances from one fortnight to the next may change. Insurers should actively communicate with workers and their employers to stay informed about a worker’s eligibility for the JobKeeper payment in the context of their current work capacity. Weekly payments of compensation will need to be continually adjusted as a worker’s capacity changes while they remain in receipt of the JobKeeper payment.
Treatment and support
Workers may be able to access treatment or other supports using recently expanded telehealth services. It is important that workers are kept informed about what options may be available to them in the current environment.
Recovery at work support and SIRA funded programs
Access and support from workplace rehabilitation services can occur within the limitations of physical distancing. These services establish return to work as the focus and return to work goals are translated and tailored to the worker. The programs must have the specific goal of keeping the worker:
- engaged in their recovery through the development of a return to work plan
- connected with their employer, where possible, and their community
- work ready, so when they are able to the worker can recover at or return to work.
Research shows that work promotes recovery and reduces the risk of long-term disability and work loss. SIRA has a range of programs that support recovery at work for workers and/or employers. The SIRA funded programs do not affect an employer’s premium calculation and have recently been updated to recognise the economic and business impacts of COVID-19. Two new programs, Connect2work and JobCover6, are now also available to assist injured people and employers during this time. It is important that insurers actively consider and utilise the programs that are available to ensure workers are supported and recovery planning is ongoing.
Independent medical examinations
When considering whether it is appropriate to refer a worker for an independent medical examination (IME), SIRA expects that the referrer assesses each matter on a case-by-case basis. In addition to making any necessary procedural modifications as a result of the pandemic, referrers should prioritise matters to determine their appropriateness for referral, considering:
- the urgency of the matter, including any potential impact of delay on the worker
- the method of assessment most appropriate to resolve the matter, including options such as video examination
- how to avoid or minimise any risks to the safety, health, and wellbeing for the worker where an ‘in person’ examination is deemed necessary, and
- in light of the above, whether the examination can be postponed until a later date, also noting any potential impact of a delay on the worker.
Further guidance material for insurers and injured worker legal representatives who are considering making referrals for medicolegal examinations during the current COVID-19 pandemic is available on the SIRA website.