Once an employee has lodged a Workers' Compensation Claim form and a First Certificate of Capacity with their employer, the employer has 5 working days to lodge these documents with their insurer. The insurer is then required to make a determination regarding the claim and notify the employee within 14 days of receiving the claim form.
Unfortunately many employees making workers' compensation claims are unaware of the legal protections that should be provided to them by their employers and workers' compensation insurers.
What if my employer does not lodge my workers' compensation claim with the insurer?
The Workers Compensation and Injury Management Act 1981 (WA) ("the Act") requires the employer to forward your Workers' Compensation Claim form and First Certificate of Capacity to its insurer within 5 working days of having first received these documents. If the employer does not comply it risks being fined by WorkCover's compliance division.
What must the insurer do with my workers' compensation claim?
Once the insurer receives your workers' compensation claim from your employer it must provide you with a decision regarding your claim within 14 days from the date that the claim documentation is received. The insurer must confirm whether your workers' compensation claim has been accepted, disputed or pended.
My workers' compensation claim has been accepted. What do I do now?
If your claim is accepted by the insurer, the insurer has accepted liability for your injury or illness. You will receive weekly workers' compensation payments if you are unable to work and the insurer will also pay for all reasonable medical and rehabilitation expenses.
What can I do if my workers' compensation claim has been disputed?
If your workers' compensation claim is disputed the insurer will not pay you compensation or pay for your treatment. The insurer is required to explain exactly why your workers' compensation claim has been disputed and if you disagree, you can request that the insurer review its decision.
For the insurer to dispute your claim, it usually indicates that the insurer has reasonably strong evidence (witnesses, medical reports or CCTV footage) on which to refute that your workplace injury or illness occurred in the manner claimed. In other circumstances the insurer will just simply dispute the claim and argue that it opposes the technical merit of the claim.
In the event your claim is disputed we strongly recommend that you obtain legal advice from a personal injury compensation specialist before proceeding any further with a claim.
My workers' compensation claim has been pended. What does this mean?
You may receive a response from the insurer noting that a decision regarding your claim is pending and that further information is required before a decision can be made. If a workers' compensation claim is pended the insurer then has an additional 10 days to make a decision regarding the claim.
Typically the insurer uses this extra time to:
- request medical notes or reports from your general practitioner, the practitioner who provided the First Certificate of Capacity or medical practitioners provided by the employer;
- investigate the circumstances that led to your injury or illness with your employer or any relevant third parties;
- consult with and direct private investigators to collect statements and evidence from you, your employer or others that may have witnessed or been involved in your incident; and
- commission and analyse expert and / or technical reports regarding the nature of your injury or illness.
If you have not received a response regarding your claim after the additional 10 days have elapsed, the claim is automatically deemed to be in dispute. An application can be filed with WorkCover requesting a determination as to liability, however, we strongly recommend that you obtain legal advice from a personal injury compensation specialist before proceeding any further with such action. Likewise, if you are requested by an investigator to provide information about your injury or illness we urge you to obtain legal advice before doing so.
What happens to my workers' compensation claim if I do not get a response from the insurer within 14 days?
If the insurer does not provide a determination regarding your claim within the 14 day time frame stipulated by the Act the worker who made the claim is "entitled to the weekly payments claimed and the insurer is liable to indemnify the employer in respect of those weekly payments". Here, the employer or the insurer may apply for a determination to terminate these weekly payments and in these cases we strongly suggest that you obtain specialist personal injury legal advice.
How can we help?
Separovic Injury Lawyers will provide you with clear and easy to understand advice on exactly how your workers' compensation claim should dealt with by your employer and its insurer. If your employer or its insurer are not processing your claim in accord with the terms of the Act then we can assist you in negotiating with them.
As explained herein, lodging a workers' compensation claim can sometimes be frustrated by the employer. Given these potential issues it makes sense to obtain specialist personal injury legal advice as soon as possible. Please do not hesitate in calling us for assistance.