The Sydney Morning Herald published an article by Nigel Gladstone on 23 February 2020  about Icare potentially implementing changes that would see injured workers incurring “gap fees” for medical procedures.

A gap payment will have the effect of an injured worker having to think about whether they need to have surgery or not on a financial rather than a medical basis.

This is most unfair in circumstances where the Workers Compensation Scheme is supposed to cover injured workers for their reasonable and necessary medical treatment and pay them weekly payments of compensation whilst they are unfit or partially unfit to work until they can return to work. Section 60 of the Workers Compensation Act 1987 provides:

60   Compensation for cost of medical or hospital treatment and rehabilitation etc

(1)  If, as a result of an injury received by a worker, it is reasonably necessary that—

(a)  any medical or related treatment (other than domestic assistance) be given, or

(b)  any hospital treatment be given, or

(c)  any ambulance service be provided, or

(d)  any workplace rehabilitation service be provided,

the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses

The reason offered by Icare to implement these gap payments is to improve affordability of the scheme. Icare state currently Specialists are provided an extra 50% per cost of Medicare surgical items of the first item and an additional 12.5% additional percent for other items after that. There can be 2, 3 or 4 items or more per surgery depending on complexity.

Payment of GAP fees is in itself a controversial topic, but in circumstances where all companies in NSW are required to have workers compensation policies in place, in many circumstances, through no fault of their own are injured on the job, it is most unfair to ask an injured worker to pay a gap for their medical expenses.

The Workers Compensation Scheme must remain affordable to employers to protect their employees, but having employees fund their own treatment or confronted with a choice to have treatment such as a spinal fusion, rotator cuff repair or a knee replacement just to save Icare money does not seem to be the right approach.

The focus should not be on making injured workers pay for their own treatment, but rather improving safety in the workplace so as to reduce workplace injuries.

Injured at work? We can help

If you have injured yourself at work or are wondering what your workers compensation entitlements are, you can contact Gerard Morson at or any of our specialist lawyers by visiting our website at