Recent amendments to the Workers Rehabilitation and Compensation Act, 1986, have established a new system of Provisional Liability
Recent amendments to the Workers Rehabilitation and Compensation Act, 1986, have established a new system of Provisional Liability. The relevant sections are Section 32A – "special provisions for payment of medical expenses after initial notification of disability" - and Part 7A (Section 50A to 50I) - "special provisions for commencement of weekly payments after initial notification of disability". In addition, the government has issued "Provisional Payment Guidelines" ("the Guidelines").
An injured worker is now entitled to receive up to 13 weeks of income maintenance payments and payment of medical expenses of up to $5,000.00 without any thorough investigation of their claim. Once the worker – or someone else acting on their behalf – has made "initial notification" of a disability, and provided a WorkCover medical certificate, they will be eligible to receive provisional weekly payments, commencing within 7 days, unless a "reasonable excuse" exists.
The Guidelines detail the basic information which must be provided in the initial notification, including: worker information; employer information; treating doctor information; disability and accident details; and, if relevant, notifier details. Initial notification can be provided in writing, or verbally. (Self Insured Employers have the ability to determine their own procedures for claims for provisional payments.)
The Guidelines also detail what constitutes a "reasonable excuse" to decline to make provisional payments.
They are:
- a claim for compensation has already been determined in respect of the same disability;
- the injured worker is unlikely to be a worker under the Act;
- the injury is not work related;
- notification is provided after 13 weeks of incapacity.
Decisions in relation to claims for provisional payments are not reviewable by the Workers Compensation Tribunal. This means that a registered employer who disagrees with a decision by EML to commence provisional weekly payments to a worker will be unable to seek the assistance of the Tribunal.
A Registered Employer who receives initial notification of a disability will have to act very quickly to:
- advise EML of the notification of disability;
- investigate and advise EML of any basis for declining a claim due to "reasonable excuse" – for example, find and advise of any evidence suggesting that the injury is not work related or the injured worker is not a worker under the Act; and
- provide wages information to enable EML to determine an appropriate rate if provisional weekly payments are to be made.
It is important to know that provisional payments do not constitute an admission of liability for the purpose of any claim for compensation in relation to the same disability. Therefore, if a worker who is in receipt of provisional weekly payments makes a claim for compensation pursuant to Section 52, the compensating authority could still reject that claim after further investigation but, if that occurs, the provisional payments paid to the worker can only be recovered if it can be proven that the worker acted dishonestly in applying for provisional payments or providing information. It is generally very difficult to prove dishonesty and so we anticipate that provisional payments will not be recovered in most cases.
The practices and procedures relating to provisional liability are, as yet, untested, and a number of matters remain unclear. We do not know, for instance, if a worker is required to lodge a formal claim for compensation pursuant to Section 52 of the Act when making a claim for provisional payments. It appears that WorkCover and EML think not, but this is not a view that is shared by all. Issues such as this will have practical significance in certain cases. For example, it is evident that the 7 day time limit will rarely allow the compensating authority sufficient time to secure independent medical evidence, or conduct a full factual investigation. Therefore, unless the worker lodges a claim for compensation pursuant to Section 52 in addition to the claim for provisional payments, there will be no real opportunity to conduct a thorough investigation of a questionable claim.
The new provisional liability regime has the potential to impact adversely upon employers in this state because of the potential for abuse which comes with an uncritical assessment of liability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.