Recent amendments to the Workers Rehabilitation and
Compensation Act, 1986, have established a new system of
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"
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.
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
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;
provide wages information to enable EML to determine an
appropriate rate if provisional weekly payments are to be
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
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.
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