Delaying provisional payments
Where a worker has incurred a wage loss due to a compensable injury, the insurer must commence provisional weekly payments within seven days of being notified about the injury, unless a ‘reasonable excuse’ exists.
What is 'reasonable excuse'?
A ‘reasonable excuse’ is a reason, stated in the Workers compensation guidelines (the Guidelines), for the insurer to not commence provisional weekly payments within seven days of receiving the initial notification of injury.
Reasonable excuses are provided in Table 2.1 of the Guidelines, as shown below:
Table 2.1 Reasonable excuses for not starting provisional weekly payments
The insurer has a reasonable excuse for not starting provisional weekly payments if any of the following apply:
There is insufficient medical information
The insurer does not have enough medical information to establish that there is an injury, as a workers compensation certificate of capacity (or other medical information certifying that a work-related injury has occurred) has not been provided.
If a certificate of capacity or other medical information is provided and includes a clear diagnosis, the claim cannot be reasonably excused using this reason.
Note: Insurers are to use discretion for workers in remote areas if access to medical treatment is not readily available.
The injured person is unlikely to be a worker
The person cannot verify they are a worker.
The employer can verify that they are not a worker.
If there is any doubt that someone is a worker under NSW workers compensation law, the insurer must verify that person’s status.
Information that confirms this may include, but is not limited to:
The insurer is unable to contact the worker
The insurer has not been able to contact the worker after at least:
The worker refuses access to information
The worker will not agree to the release or collection of personal or health information relevant to the injury sufficient to determine provisional liability.
The injury is not work related
The insurer has information that:
If the employer believes the injury is not work-related, they are to provide the insurer with any supporting evidence they have, such as:
Note: Suspicion, innuendo, anecdotes or unsupported information from any source, including the employer, is not acceptable.
There is no requirement for weekly payments
Based on the information received as part of the notification of injury or otherwise obtained by the insurer, the insurer is reasonably satisfied there is no requirement for weekly payments, for example because the injury has not resulted in any incapacity or loss of earnings.
The injury is notified after two months
The notice of injury is not given to the employer within two months of the date of injury.
Note: This reason cannot be used if the acceptance of liability is likely and provisional payments will be an effective way to manage the injury.
A reasonable excuse may only be applied to provisional weekly payments. A reasonable excuse cannot be applied to provisional medical expenses.
Insurer communication of reasonable excuse(s)
If the insurer determines that one or more reasonable excuses apply for not starting provisional weekly payments, they must:
- give the worker written notice within seven days of receiving the initial notification, and
- tell the employer as soon as possible and confirm in writing, so the employer does not make payments in error.
The notice to the worker must set out:
- an explanation of all the reasonable excuses that apply to the situation
- that the worker can make a claim for compensation, and that the claim will be determined within 21 days
- how a claim can be made.
The notice should also explain:
- how the excuse can be resolved
- that the worker can talk to the insurer for further information
- that the worker can seek help from their union or the Workers Compensation Independent Review Office (WIRO), and
- that the worker has a right to seek an expedited assessment by application to the Registrar of the Workers Compensation Commission (the Commission).
Once a worker has resolved the reasonable excuse, the insurer can either provisionally accept within seven days or, within 21 days fully accept or dispute liability for the claim.