Liability

Published: 12 August 2019
Last edited: 12 August 2019

Accepting liability

Acceptance of liability can occur after injury notification, after provisional liability has been accepted, or after a reasonable excuse has been resolved.

Claim liability must be accepted if the worker is to receive weekly benefits past 12 entitlement weeks or if medical benefits are likely to exceed $10,000.

Claim liability is accepted once the insurer is satisfied that:

  • the injured person is a ‘worker’ as defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) or a ‘deemed worker’ (see Schedule 1 to the 1998 Act)
  • there is an injury (including a disease injury), as defined in section 4 of the 1998 Act, arising out of or in the course of employment
  • employment is a substantial or main contributing factor to the injury or disease as per section 9A of the Workers Compensation Act 1987 (1987 Act).

Determining liability may be a simple decision that the insurer can make based on the evidence supplied by the worker and the employer, or it can be more complex and involve further investigations.

If the insurer accepts liability, the insurer is to provide written notice to the worker.

S3. Initial liability decisions – general, provisional, reasonable excuse or full liability
Principle
Liability decisions will be informed by careful consideration of all available information and proactive consultation with the worker and employer.

Disputing liability

An insurer may dispute liability for many reasons, including, but not limited to:

Reason to dispute liability

Reference

The worker has not sustained an injury.

Section 4 of the 1998 Act

The person is not a worker.

Sections 4 and 5 and Schedule 1 of the 1998 Act

Employment was not a substantial contributing factor to the injury.

Section 9A of the 1987 Act

The psychological injury was wholly or predominantly caused by the employer’s reasonable actions with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefit to workers.

Section 11A of the 1987 Act

Claimed medical, hospital and rehabilitation expenses are not reasonably necessary because of the injury.

Sections 59 and 60 of the 1987 Act

The claim for property damage covers items the legislation does not.

Division 5 of the 1987 Act

There is no total or partial incapacity for work resulting from the injury.

Section 33 of the 1987 Act

The degree of permanent impairment does not reach the required thresholds for a lump sum payment.

Sections 65A and 66 of the 1987 Act

The worker was injured on a journey with no real and substantial connection between their employment and the accident that caused the injury.

Section 10 of the 1987 Act

It is not a liability dispute when the worker’s entitlements change due to legislated step-downs, entitlement periods or legislated cessation points.

Soundly based decisions

If an insurer disputes an aspect of a claim it must ensure that it has considered all the available evidence. Evidence used by an insurer to dispute a claim may include:

  • claim form
  • certificates of capacity
  • medical reports
  • treatment plans
  • workplace rehabilitation provider reports
  • factual investigation reports
  • independent medical reports
  • injury management consultant reports
  • surveillance findings.

Once the insurer has disputed liability it must notify the worker. Ideally, the insurer will call the worker to discuss the decision. This will be followed by an insurer decision notice.

The decision notice

The decision notice must be in plain English and include:

  • a concise and easy to understand statement of the reasons for the decision and the issues relevant to the dispute (using the approved decision notice summary form)
  • the relevant sections of the legislation on which the insurer relies
  • a statement identifying all the reports and documents submitted by the worker in making the claim for compensation, and by the employer in connection with the claim
  • a statement identifying all the reports that are relevant to the decision, whether or not the report supports the reasons for the decision
  • a statement identifying all the reports that clause 41 of the Workers Compensation Regulation 2016 (2016 Regulation) applies that are relevant to the decision, whether or not the report supports the reasons for the decision
  • a statement advising that a copy of a report required to be provided by the insurer under clause 41 (3) of the 2016 Regulation (except as provided by clause 41 (5) or (6)) accompanies the notice
  • they can make a request in writing to the insurer to review their decision
  • a statement to the effect that the worker can seek advice or assistance from a union or lawyer
  • that the worker can seek advice or assistance from Workers Compensation Independent Review Office (WIRO) on 13 94 76
  • that they can contact the Registrar of the Workers Compensation Commission (the Commission) by email registry@wcc.nsw.gov.au or post to Level 20, 1 Oxford Street, Darlinghurst NSW 2010.

Where an insurer fails to provide a copy of a report as required by the Regulations, that report is not admissible in proceedings in relation to the dispute concerned.

Required period of notice

If the worker has been in receipt of weekly payments for a continuous period of at least 12 weeks then the insurer is required to provide notice of the intention to discontinue or reduce weekly payments as follows:

Period worker has been receiving weekly payments

Period of notice required

A continuous period of less than one year

Two weeks

A continuous period of one year or more

Six weeks

Different notice periods apply when weekly payments are being reduced or discontinued due to a work capacity decision.

The liability dispute notice can be delivered personally to a worker or by post. Where notice is given by post, service is generally taken to have been effected on the seventh working day after the dispute notice was posted.

Dispute resolution

The worker is able to apply for a review of the decision by the insurer, or to proceed directly to the Commission to have the dispute resolved. The worker can proceed to the Commission while waiting for the outcome of an internal review by the insurer.

Further information can be found in 'Resolving complaints and disputes'.

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