My WorkCover claim has been rejected – what are my next steps?

There are several reasons why an insurance company may reject your claim. Common reasons include:

• The person making the claim does not meet the legal definition for a ‘worker’;
• The insurer considers that employment was not a substantial contributing factor to the injury;
• The compensation sought is excessive given the nature and extent of the illness or injury;
• You had pre-existing injuries/conditions which are causing ongoing symptoms.

Where the insurer disputes liability for your workers compensation claim they will advise you of their reason(s) in writing (this is called a Section 78 notice) and provide information on the next steps available to you.

The Section 78 notice must provide:

1. A clear explanation as to why it has disputed liability and the factors that brought the insurer to that decision.
2. Identification of all documents available to the insurer at the time it made its decision (including copies of those documents if you don’t already have them).
3. A clear pathway or guidelines outlining how you can go about requesting a review of the decision

If you receive a Section 78 Notice, your options are:

1. Seek legal advice.

   We will immediately take your detailed instructions, obtain a copy of your file from the workers compensation insurer, and acquire all relevant medical and other materials. We can help you navigate your way through the system and obtain the evidence you will need to challenge the insurer’s rejection of your claim.

   You may be eligible for lost income, medical expenses, travel expenses, domestic assistance and permanent impairment.

2. Request a review by the insurer.

   There will be an application form attached to the Section 78 Notice. The review form gives you a chance to explain why you think a review is necessary. You should use this opportunity to include any additional information relevant to your claim. The insurer must respond within 14 days. The insurer will either maintain its original decision or in a best-case scenario, the insurer will reverse its previous decision and accept your claim. If the dispute decision is maintained, the next step is to proceed to the Workers Compensation Commission (WCC).

3. Apply to the WCC.

   The Workers Compensation Commission is an independent government tribunal that deals with disputes between workers, employers and insurers across New South Wales. The WCC may appoint an Arbitrator – an independent decision maker to help resolve the dispute.

The process at the WCC is as follows;

1. Your lawyer files an Application for Dispute resolution with the WCC which includes all evidence to be relied upon.
2. The Insurer or its lawyer must file a reply with their evidence within 28 days.
3. The matter is reviewed by the WCC and a telephone conference is appointed usually 28 days later.
4. You should attend the telephone conference in person at your lawyer’s office or via the telephone.
5. At the telephone conference the Arbitrator will discuss the matter and the issues in dispute. The Arbitrator will attempt to resolve the matter by agreement. If the matter cannot be resolved, the Arbitrator will make orders for further preparation of the claim and list the matter for a face to face Conciliation/Arbitration Conference. Your lawyer will do the majority of the talking at the telephone conference.
6. Your lawyer will then confirm in writing the date and time of the Conciliation/Arbitration Conference which is usually 28 days following the telephone conference.
7. If further preparation is necessary your lawyer will contact you for further information.
8. The Conciliation/Arbitration Conference has two phases;

1. The Conciliation phase – the Arbitrator will discuss the issues and see if the parties can reach agreement, if no agreement can be reached the matter proceeds to;

2. The Arbitration phase – the barristers are asked to make submissions outlining what the outcome of the claim should be and occasionally questions are asked by the Arbitrator about the claim. The Arbitrator then makes a written decision usually within 21 days.

For assistance with challenging a rejected workers compensation claim, contact our expert workplace lawyers today on 13 43 46.