Guidance notes on Provisional Liability

Transcription

1 2008 Guidance notes on Provisional Liability These guidance notes are based on advice received by SISA. They do not, however, purport to be legal advice. All users of these notes should seek advice from their own legal advisers prior to implementing provisional liability policies and procedures based on these notes. Self Insurers of South Australia Inc Version 1 29 December 2008

2 Contents Preface... 1 Indicative procedures... 2 Attachment 1 Indicative procedures flowchart... 4 Attachment 2A - Statement in designated form - Section 50D(1)(b)... 5 Attachment 2B - Statement in designated form Section 50E(1)(b)... 5 Attachment 2C - Example deferral letter text including advice about provisional liability... 7 Attachment 3 The Provisional Payment Guidelines... 8 Attachment 4 Gazette notice for new claim form 18 December

3 Guidance Notes on Provisional Liability and Claims for Compensation Preface The amendments to introduce provisional liability stemmed from Clayton Walsh Review Recommendation 49 - That a system of provisional liability be introduced in order to ensure that payments to injured and ill workers are not unnecessarily delayed and that rehabilitation and return to work efforts can be began as soon as possible. The Review commented that: The need for prompt attention to claim and injury management has been highlighted in several areas of this report. One impediment to this objective arises from delays and disputes surrounding the determination of liability ie does the injury constitute a compensable injury within the definitions of the relevant legislation. Experience in workers compensation jurisdictions (which are fundamentally no-fault schemes in Australia) has demonstrated that at a practical scheme level, delays and disputes surrounding this issue are often counterproductive. In most cases the injured worker is able to establish entitlement to benefits, and in the meantime the time and effort expended on resolving the so-called liability issue lead to the claim becoming far more protracted and difficult than would otherwise have been the case, and the injured worker being compromised with respect to return to work potential. While there are some claims where liability is rightly denied or reduced, these are far outweighed by the many where the dispute does not succeed. One way of dealing with this issue is the notion of Provisional Liability, whereby the injured worker is assumed to be entitled to benefits, and is supported on the basis of this assumption, unless and until a finding is made to the contrary, usually up to a maximum period. 1 Clayton clearly identified delayed claim determination as the issue to be addressed by provisional liability. This therefore places on compensating authorities an onus to determine claims as quickly as possible, and only fall back on provisional liability if determination is not possible within the prescribed period. The Minister for Industrial Relations echoed this intent when introducing these provisions in Parliament: Another benefit for injured workers is that the bill adopts the successful New South Wales model of provisional liability. Under this provision, injured workers will be able to avoid delays in payments by accepting up to 13 weeks of income replacement and a maximum of $5,000 of medical expenses. The experience in New South Wales is that this form of intervention assists both return to work and the efficiency of the dispute resolution process. 2 In order to best pursue the intent of the provisional liability provisions, these guidance notes are geared towards early claim determination as a first priority. These guidance notes are based on advice received by SISA. They do not, however, purport to be legal advice. All users of these notes should seek advice from their own legal advisers prior to implementing provisional liability policies and procedures based on these notes. 1 Review of the South Australian Workers Compensation System Report December 2007 page Hansard SA House of Assembly 28 February 2008 Self Insurers of SA Inc December

4 Indicative procedures The following indicative procedures are summarised in the flow chart at Attachment 1 Steps 1) Complete relevant parts of the Employer s Section of the claim form (if received) in accordance with normal procedure. 2) Allocate a claim number and create claim records in accordance with normal procedure. 3) Consider the documentation. Can the claim be determined within 7 calendar days of receipt? 4) If the claim can be determined, do so, using the appropriate standard letter. 5) If the claim is for incapacity for work, calculate AWE in accordance with normal procedure. 6) If the claim cannot be determined within 7 days of receipt, decide what additional information is needed to determine the claim and consider provisional liability. 7) If no reasonable excuse exists, provisional liability payments must commence within 7 days of receipt of the claim. Under the Provisional Payment Guidelines, commence includes the payments being scheduled for the next pay cycle, even if the date of first payment is more than 7 days after receipt of the claim. 8) If no reasonable excuse exists, the decision to commence provisional liability payments should include a decision on the period over which it will be paid. The Act states 13 weeks as the maximum period, but it is within the self insurer s discretion to approve payments for a different period. This decision should be based on the information provided, the nature of the employee s work, the employer s ability to provide modified duties and information from the treating doctor regarding healing time and future capacity. 9) If no reasonable excuse exists, send a letter to worker setting out: Margin notes Case law supports the ability of compensating authorities to treat a completed claim form or other forms of information as a claim for compensation under Div 8 of the Act regardless of any election made under the PP Guidelines or the approved manner and form set out in the Gazette on 18/12/08 (Attachment 4). For example: there is in existence a usual compensation claim... It may be inferred that this type of claim form has been approved by the Corporation for general purposes but that is not to say that, in its discretion, the Corporation cannot accept a claim made in some other form and manner Parsons J, Corporation (Webster Motor Manufacturing Co.) v Mullaney [1993] SAWCAT 23 Section 50B(1) Provisional Payment Guidelines are in Attachment 3 Section 50C(1) a period of up to 13 weeks. See attachments 2B & 2C a) Advice of deferral of determination b) Section 97 expedited decision rights c) The investigations or information required to determine the claim Self Insurers of SA Inc December

5 d) Advice that provisional liability payments are being commenced, including the rate and the period calculated in a manner consistent with sections 4 and 35 of the WRCA. e) A statement in the designated form under Section 50E(1)(b). 10) If a reasonable excuse exists, send a letter within 7 days setting out the reason that provisional liability payments have not been commenced and the statement in the designated form under Section 50D(1)(b). If internal policy allows, interim payments can be offered in lieu in accordance with normal procedures. 11) Where appropriate, refer worker to rehabilitation and/or other necessary services to establish and maintain a return to work focus. 12) For undetermined claims, arrange necessary investigations and follow them up regularly, noting the file accordingly and keeping the worker informed. Regardless of the provisional liability status, determine the claim as soon as it is possible using the normal procedures and standard letters. 13) If the period of acceptance of provisional liability as specified in the letter issued at step 9 expires prior to claim determination, interim payments can be offered at the same rate if internal policy allows. 14) In any event, on determination of the claim, any provisional liability benefits and/or interim payments cease. If the claim is accepted, weekly payments are made and if the claim is rejected, compensation payments cease. 15) Case manage as appropriate. See attachment 2B. 7 days is prescribed by regulation 18AA of the WR&C (General) Regulations as amended by Gazette 18 Dec See attachment 2A for designated form Rehabilitation referral will be under s.26(4) if the worker is in receipt of provisional payments. This is based on the view that a decision to make provisional liability payments over a set period is a one shot decision under the Act that discharges the compensating authority s obligations under section 50B and thereby releases the constraint of section 106(3). Although it is unlikely that a decision to make provisional liability payments over a further period would be challenged, case managers may consider payments under s.106 given the recovery provisions available under s.106(2), especially if there are lingering doubts as to compensability but insufficient facts yet exist to support a rejection of the claim. Self Insurers of SA Inc December

6 Attachment 1 Indicative procedures flowchart PROVISIONAL LIABILITY PROCEDURE FLOWCHART Version 3 22 December 2008 Self Insurers of SA Inc Form & DMC received Can the claim be determined within 7 days of notification? No Does a reasonable excuse under provisional liability apply? No Issue notice of claim deferral & identify info needed to determine claim Yes Yes Determine claim Issue s.50d(1) notice to worker within 7 days Consider interim payments if more than 13 weeks since incapacity arose Yes Monitor worker compliance with requirements of Clause 3 of PPG Issue s.50e(1) notice to worker incl designated notice Authorise PL payments of IM within 7 days or next pay cycle Decide the period over which PL will be paid (up to 13 weeks) & rate Is there now enough info to determine claim? No Has 13 weeks or period of PL elapsed since notification? No DMC expires No Yes Has the worker RTW, ceased to be incapacitated or failed to comply with clause 3 of PPG? IPs accepted Move to interim payments Consider offering interim payments Issue notice requiring a further DMC &/or any other info required Interim payments not offered or offered but refused Yes No Yes Discontinue PL No Further DMC &/or other info provided within 7 days? Yes Monitor worker Is there now enough compliance with info to determine claim? requirements of Clause 3 of PPG Self Insurers of SA Inc December

7 Attachment 2A - Statement in designated form - Section 50D(1)(b) As published in the Gazette dated 18 December 2008 What you need to know about your rights under the Act. Decisions not to commence provisional weekly payments are not reviewable. However, you may seek determination on a claim tor compensation under Section 52 of the Workers Rehabilitation and Compensation Act 1986 (see below). This means the decisions about provisional weekly payments cannot be disputed or resolved at the Worker's Compensation Tribunal under Parts 6A and 6B of the Workers Rehabilitation and Compensation Act Refer to section 50I(b) of the attached extract of the Act. You may make and request a formal determination of a claim for compensation under section 52 of the Act (extract attached), using the information provided, by contacting the case manager on.... The case manager will advise you if you need to submit any further information to enable a formal determination of your claim. This decision should be made (where possible) within 10 business days of your request. If you believe the explanation provided to you for not commencing provisional weekly payments was unreasonable eg, based on wrong information, Or you have further information, you may wish to discuss this with your case manager. If, after having provided, new or further information, you are dissatisfied with the response from your claims manager and you believe the decision does not comply with the Provisional Payment Guidelines, you may make a complaint to the WorkCover Ombudsman by contacting the WorkCover Ombudsman as follows: WorkCover Ombudsman South Australia Freecall: Level 6 Chesser House Grenfell Street Adelaide, S.A G.P.O. Box 2343 Adelaide, SA 5001 Telephone: (08) Facsimile: (08) owo@saugov.sa.gov.au Attachment 2B - Statement in designated form Section 50E(1)(b) As published in the Gazette dated 18 December 2008 What you need to know about these payments and making a claim for compensation. These are provisional weekly payments of compensation paid on the basis of provisional acceptance of liability. Please note that these payments do not constitute an admission of liability under the Act. Provisional weekly payments of compensation can only be paid to you for a maximum period of 13 weeks. After provisional weekly payments have commenced for a period, they can be discontinued if you fail to provide a designated medical certificate if requested by your case manager or on the basis of any grounds contained in the Provisional Payment Guidelines, which are as follows: There is new credible and substantiated evidence (eg, you are not a worker as defined in the Act) that leads to the conclusion that the disability is not compensable. You consent. Your case manager cannot contact you for over a week despite making reasonable attempts. Self Insurers of SA Inc December

8 Your case manager receives a certificate from a doctor which certifies that you have recovered and that you have ceased to be incapacitated for work. You return to work and are earning wages equal to or in excess of the rate of your provisional weekly payments. You are dismissed from employment for serious and wilful misconduct; or You have breached the obligation of mutuality. Applying for, or receiving, provisional weekly payments docs not prevent you from also making a claim for compensation under section 52 of the Act. Refer to the attached copy of section 52 of the Act. If you choose to make a claim for compensation in respect of the same disability for which you received provisional weekly payments, you will not receive additional weekly payments for the same period during which you received those provisional weekly payments. For further information, refer to the attached copy of Division 7A and the Provisional Payment Guidelines which can be found on Self Insurers of SA Inc December

9 Attachment 2C - Example deferral letter text including advice about provisional liability Dear [worker name] We confirm receipt of your claim for compensation dated [date] which asserts an entitlement to compensation as a result of [injury] which you state occurred on [date/time]. Delay in determination of your claim Our enquiries into your claim are ongoing and we are not in a position to formally determine your claim at this stage. [state reasons for delay and further information or investigation required] Determination of your claim for compensation will be made promptly upon [receipt of this information/completion of these investigations]. If you believe there has been undue delay in determining your claim, you may apply, pursuant to Section 97 of the Act, to the Workers Compensation Tribunal for an expedited determination. However, an application for expedited determination of a matter cannot be made until at least 14 days after the day you lodged the claim with us. To apply, a completed Form 14 must be lodged with the Workers Compensation Tribunal, Riverside Centre, North Terrace, Adelaide. Provisional Liability Provisional Liability payments pursuant to Division 7A of the Act will be made to you on your usual pay day for a period of [state period of PL] at the rate of [state weekly payment amount] per week (in accordance with the principles contained in sections 4 and 35 of the Act). The payment period has been determined having regard to the nature of the claimed disability and the likely duration of incapacity for work and our ongoing offer to you of suitable duties. Payment of provisional liability is conditional upon you providing WorkCover medical certificates for all relevant periods. This letter serves as notice pursuant to section 50F of the Act of the requirement for you to provide WorkCover medical certificates for all periods for which you claim provisional liability payments. If your claim for compensation is accepted, provisional liability payments will be regarded as weekly payments of income maintenance under section 35 of the Act. If your claim for compensation is rejected, provisional liability payments cannot be recovered unless you have acted dishonestly in making the claim. You are required to participate actively in rehabilitation, to undertake suitable work for which you are fit, to attend medical examinations and capacity assessments as required. If you do not comply with your obligations, payments of provisional liability may be discontinued on 7 days written notice, pursuant to section 50C(4) of the Act. Provisional payment of medical expenses may also be made pursuant to Section 32A of the Act, up to a maximum of $5,000. Please forward accounts and receipts for reasonable medical treatment to [name/title] for consideration. Please note that pursuant to section 50C(2) of the Act, the acceptance of liability on a provisional basis does not constitute an admission of liability by [employer name] under this Act or independently of this Act. If you have any queries, please do not hesitate to contact the writer on [contact details]. Self Insurers of SA Inc December

10 Attachment 3 The Provisional Payment Guidelines Self Insurers of SA Inc December

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24 Attachment 4 Gazette notice for new claim form 18 December 2008 Self Insurers of SA Inc December

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