Delaying provisional payments

Published: 12 August 2019
Last edited: 12 August 2019

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

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:

Excuse

Reason

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.

or

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 employer agreeing to the worker’s status
  • the worker’s payroll number
  • a current payslip or a bank statement with regular employer payments
  • a contract of employment or services.

The insurer is unable to contact the worker

The insurer has not been able to contact the worker after at least:

  • two attempts by phone (made at least a day apart)

and

  • one attempt in writing (which may include an attempt by email).

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:

  • the worker did not receive an injury which is compensable under the NSW workers compensation law, or
  • strongly indicates that compensation for an  injury may not be payable under NSW workers compensation law.

If the employer believes the injury is not work-related, they are to provide the insurer with any supporting evidence they have, such as:

  • medical information that the condition already existed and has not been aggravated by work
  • factual information that the injury did not arise from or during employment

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:

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.

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