*The contents in this blog relates to legislation in New South Wales.
In NSW after receiving notification of a workplace injury, a workers compensation insurer is obligated to either determine liability, or commence provisional weekly payments (sometimes referred to as provisional acceptance of liability) within seven days. However, an insurer does not have to determine liability or commence payments if there is a ‘reasonable excuse’ not to.
Section 267(2) of the Workplace Injury Management and Workers Compensation Act 1998 states that ‘reasonable excuses’ can be set out under the Workers Compensation Guidelines. Part 2 of the Guidelines states that a reasonable excuse not to determine liability or commence provisional payments can include the following:
There is insufficient medical information to establish that an injury has occurred
This reasonable excuse is usually applied to claims where an injured worker’s nominated treating doctor has not correctly completed a NSW Workers Compensation Certificate of Capacity and has not adequately identified the injury. This sometimes occurs in psychological injury cases if a doctor notes down “workplace stress” or “workplace bullying” on a certificate, but does not provide a psychiatric diagnosis such as adjustment disorder or major depression. It can also be applied in circumstances where an injury is an aggravation of a pre-existing condition, and a nominated treating doctor has not made that clear on the certificate.
The injured person is likely not a worker
This reasonable excuse is usually applied if a worker cannot verify that they are a worker within the meaning of section 4 of the Workplace Injury Management and Workers Compensation Act 1998, or the employer can verify that they are not a worker. If you receive a request for information from the insurer to verify that you are a worker, you should submit to the insurer information such as a payslip, your payroll number, your contract of employment, or a bank statement showing your wage payments.
The insurer is unable to contact the worker
This excuse can be applied if the insurer cannot contact the worker after at least two phone attempts and one written attempt. It is important if you lodge a claim or notify your employer of a workplace injury that you respond to the insurer.
The worker refuses the insurer access to information
Similarly, if you lodge a claim or have notified your employer of an injury, you must cooperate with the insurer’s reasonable requests for information. This often includes requests such as details of your treating medical practitioners, details of any relevant pre-existing conditions/injuries and can include a request for a signed authority authorising the insurer to collect personal and health information about you. If in doubt about whether an information request from the insurer is reasonable and relevant to your workers compensation claim, you should seek legal advice.
The injury is not work-related
This is a broad and common reasonable excuse applied by insurers. It allows an insurer to reasonably excuse a claim if the insurer has information that the worker did not receive a work-related injury compensable under NSW workers compensation laws or information that “strongly indicates” as much. Although the workers compensation guidelines state that “suspicion, innuendo, anecdotes or unsupported information from any source, including the employer, is not acceptable” it is sometimes the case that claims are reasonably excused for that reason. If this occurs you should you should seek legal advice immediately to investigate whether the decision can be challenged.
There is no requirement for weekly payments
This often occurs where an injury is a very minor injury requiring no time off work, such as small cut or bruise, or an incident report has been filled out and submitted but no injury was actually sustained.
The injury is notified more than two months after it occurred
This excuse cannot be used by an insurer if the claim is likely to be accepted. It is important that if you are injured at work, you report it as soon as possible. Not only can this reasonable excuse be applied to a claim for late notification, but injured workers also have an obligation under section 254 of the Workplace Injury Management and Workers Compensation Act 1998 to report an injury as soon as possible. If you do not, your claim may be declined.
Has your claim been reasonably excused?
If you have been affected by a workplace injury and want to discuss your rights and entitlements under the workers compensation scheme, please don’t hesitate to contact us on 13 43 63. Our workers compensation lawyers are Approved Legal Service Providers of the Independent Review Office (IRO) and we can apply to have your legal costs funded by IRO.