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The insurer has declined liability for my claim, what can I do now?

Updated on September 06, 2023 | Published on August 30, 2016

By Matthew Garling

To decline a claim for weekly compensation and/or medical expenses, the insurer must send the injured worker a Section 74 Notice.

Attached to a S. 74 Notice is all relevant documentary information including medical evidence.The workers’ compensation insurer is not allowed to decline or refuse to pay for any medical treatment or weekly compensation without issuing a Section 74 Notice.

It is very common for an insurer to simply tell an injured worker over the phone that they are not going to pay for further treatment such as physiotherapy, and not provide a Section 74 Notice. This is in direct contravention to the Workers Compensation Legislation.

If an insurer refuses to pay for medical expenses or stops payment of weekly compensation, then they must put the reasons in writing in a Section 74 Notice. Once the insurer has issued a Section 74 Notice your lawyer can challenge the decision through the Workers Compensation Commission if he or she believes that the insurers’ decision is incorrect.

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A S.74 Notice is a statement outlining the reasons why the insurer is declining the claim.

Why would the Insurer decline my claim?

An insurer may stop weekly payments of compensation or refuse to pay for medical treatment if they have obtained credible evidence to indicate that they are not liable for all or some part of a claim.

The reasons for disputing liability are varied but may include that the insurer has evidence to prove:

  • That the worker has not sustained an injury in the course of employment.
  • That the worker is not a worker as outlined in the Act.
  • That employment is not a substantial contributing factor to the injury as set out in Section 9A.
  • That psychological injury was wholly or predominately caused by reasonable action of the employer as set out in Section 11A.
  • That the incapacity for work is not a result of the injury.
  • That the incapacity for work is a result of some pre-existing condition or abnormality.
  • That the treatment requested is not reasonably necessary.

The most common reason we see for the insurer to decline a claim is that the injured person has recovered from the injury and any ongoing problems are due to a pre-existing condition. The insurer will obtain a medical report from one of its doctors which usually say that any problems now are due to a degenerative condition rather than the effects of any injury. Essentially these reports are saying the injury is due to old age!

We have yet to lose a case in the Workers Compensation Commission in regard to overturning an insurers decision made on this basis. An injury only needs to aggravate a pre-existing condition for the insurer to be liable and pay weekly compensation and medical expenses.

What is not a decision to decline liability

A decision to reduce or terminate weekly compensation on the basis that an injured worker is now fit to return to work or fit to return to some other suitable employment is not a liability dispute. A Section 74 Notice will not be given in such circumstances.

Such a decision is a dispute in relation to the capacity of the worker to work and is known as a Work Capacity Decision. These disputes are not determined by the Workers Compensation Commission and are in fact determined by WorkCover and WIRO. Unfortunately, lawyers are not allowed to be paid in relation to disputes in respect of work capacity.

What is a Section 74 Notice?

Section 74 of the Workplace Injury & Compensation Act 1998 requires an insurer who disputes liability in respect of a claim or any aspect of a claim to give notice of the dispute to the worker in writing.

A decision to dispute liability should not be made lightly. The insurer must consider all evidence relevant to the claim including all medical reports and plans submitted on behalf of the worker, and any independent reports obtained by the insurer before declining liability.

Before giving notice of a decision to dispute liability, the insurer must also carry out an internal review of all of the evidence. The review is to be conducted by someone other than the person recommending the proposed decision to decline liability.

A Section 74 Notice must:

  • Contain a concise and understandable statement detailing the reasons why the insurer disputes liability.
  • Contain a statement identifying all the reports and documents submitted by the worker in making the claim for compensation.
  • Contain a statement identifying all the medical reports and other documents obtained by the insurer.
  • Provide a copy of all medical reports and other reports obtained by the insurer relevant to the claim whether or not the reports support the reasons for the decision.

If an insurer declines liability, they are required to give a period of notice before terminating weekly payments of compensation. That notice period is 2 weeks if weekly payments have been received for less than a year and 6 weeks if weekly payments have been received for more than 1 year.

How to challenge a Section 74 Notice

There are two ways to challenge a Section 74 Notice:

  1. Request an internal review from the insurer; and/or
  2. Make an application to the Workers Compensation Commission of NSW to appoint an independent arbitrator to hear and determine the issue in dispute.

The Section 74 Notice will contain details of how to request a review of the claim from the insurer. Any such request to an insurer must be carried out in accordance with the insurers’ complaints and disputes management model. Review is to be carried out by someone other than the original decision maker.

In our experience internal reviews almost never result in the decision being overturned. It is usually a complete waste of time and only allows the insurer to “fix up” their reasons for declining the claim in the first place.

If the decision to decline the claim is disputed in the Workers Compensation Commission the insurer is not allowed to raise any other issues other than those that were outlined in the Section 74 Notice. By requesting an internal review, this often allows the insurer a second chance to prepare the Section 74 Notice and include further issues to dispute. In our view, it simply allows the insurer to do a better job declining your claim the second time around. For this reason we rarely request an internal review.

The better option is to consult an accredited specialist in personal injury law immediately to discuss your options. If the lawyer believes that the insurer has made an error and that you will be successful in overturning the decision an application can be made to the Workers Compensation Commission. This application will request the Workers Compensation Commission to appoint an arbitrator to hear and determine the dispute.

What happens when my dispute is referred to The Workers Compensation Commission?

Your lawyer will need to review the Section 74 Notice and discuss the claim with you in depth. Your lawyer will need to be satisfied that the insurers’ decision to decline your claim is incorrect.

If so, your lawyer will obtain additional medical evidence to support your claim. This usually involves a period of about 3 months or so to obtain your medical records from your treating doctors, arrange for you to attend an independent medical examination to obtain further medical evidence in support of your claim and prepare a detailed statement from you.

Once all medical and documentary evidence is available to support your claim, your lawyer will file an application in the Workers Compensation Commission to dispute the decision by the insurer. The Workers Compensation Commission will appoint an independent arbitrator to hear and determine the issues in dispute.

The process is as follows:

  1. Your lawyer files an Application for Dispute resolution with the WCC which includes all evidence to be relied upon.
  2. The Insurer or its lawyer must file a Reply with their evidence within 28 days.
  3. The matter is reviewed by the WCC and a telephone conference is appointed usually 28 days later.
  4. Your lawyers is notified by the WCC of the date and time of the telephone conference.
  5. Your lawyer will notify you of the details of the telephone conference which you must attend either in person or via telephone.
  6. At the telephone conference the Arbitrator will discuss the matter and the issues in dispute. The Arbitrator will see if the matter can be resolved by agreement. If not the Arbitrator will make orders for further preparation of the claim and set down the matter for a face to face Conciliation/Arbitration Conference. Your lawyer will do the majority of the talking at the telephone conference.
  7. Your lawyer will then confirm in writing the date and time of the Conciliation/Arbitration Conference which is usually 28 days following the telephone conference.
  8. If further preparation is necessary, your lawyer will contact you for further information.
  9. The Conciliation/Arbitration Conference has two phases:
    1. The Conciliation phase is where the Arbitrator will discuss the issues and see if the parties can reach an agreement, if no agreement can be reached the matter proceeds to;
    2. The Arbitration phase where sometimes questions are asked to clear up any unknown matters and the lawyers are then asked to submit what orders the Arbitrator should make. The Arbitrator then makes a written decision within 21 days.
  10. The Arbitrators decision is final and binding on both you and the insurer unless the Arbitrator has made an error of law.
  11. The outcome is confirmed by the WCC within 28 days from the date of Arbitration.
  12. The insurer will then pay the compensation awarded to you. If any amount is payable as a lump sum this is usually paid by way of a cheque in your name sent to your lawyer about 6 – 8 weeks later.

Do I need to pay any legal costs?

Under the Workers Compensation Act, insurers are no longer required to pay a workers’ legal costs and disbursements.

A workers’ legal costs and disbursements are now paid through the Independent Legal Assistance and Review Service (ILARS) which is a function of WIRO. ILARS approves Lawyers to be able to act for injured workers.

If you require a lawyer to assist you in a dispute with an insurer, then the lawyer applies to ILARS for payment of legal costs and disbursements. ILARS will generally approve payment of legal costs and disbursements and your lawyer will be paid directly by ILARS at the conclusion of your claim.

You are therefore not responsible for payment of any legal costs and disbursements as long as ILARS approves funding.

What happens if my claim is successful?

If you challenge the insurers decision to decline liability and the matter is heard before an Arbitrator of the Workers Compensation Commission, the arbitrator will make a determination as to whether the insurer was correct in declining liability for your claim, usually within 21 days of the hearing date.

If the decision is overturned the insurer will need to immediately recommence payment of weekly compensation, including paying back pay for any period in which they have refused to pay weekly compensation in the past and/or the insurer will be required to reimburse and/or pay for any reasonably necessary medical treatment.

To continue to receive weekly payments you will need to obtain a WorkCover Certificate of Capacity from your nominated treating doctor.

In relation to ongoing medical treatment you will need to obtain prior approval from the insurer before incurring treatment.

If you have any question at all, no matter how silly you think they are, please contact me on mgarling@garlingandco.com.au and outline your circumstances and I will personally respond. I receive many emails for help each day and personally respond to all.

For more information on Workplace Compensation Claim Success, read our guide here.

Garling & Co Lawyers

Matthew Garling

Matthew Garling is an Accredited Specialist in Personal Injury Law approved by New South Wales Law Society. He is admitted to practice in the Supreme Court of NSW and the High Court of Australia. Matthew is also a member of...
Kimberly B.
23:14 14 Feb 24
Mathew is very knowledgable and has been of great assistance to me. All the staff are friendly and helpful. I'm so happy I found this firm.Thank you Mathew and team for your great work in my case.... I am 100% happy with what you achieved for me.read more
Julie M.
10:16 16 Jan 24
My last stage of Workers compensation claim was managed by Emma Perkins, Natasha Stojanovic, Rebecca Dunshea and Kelli Robinson at Garling and Co. Lawyers who went the extra mile with their service... from the beginning to the end of 3 years of my case. I have become very anxious with almost everything after a workplace injury and a lot of times I probably ask more questions than I need to, but Emma Perkins always finds clear answers to my questions in a short time and explains to me patiently even using her mealtime or between her meeting and make me feel that I have been very well take care and supported. I am so grateful and extremely satisfied. The excellent service, attitude, and culture of Metthew Garling and his team are second to none with a very high success rate. If you going to battle with your workplace injury for a short or long period, you are better off with Garling and Co. lawyers who are able back you up every step of the way. I strongly recommend it to anybody who needs their service like me. Julieread more
patrick P.
01:46 19 Dec 23
I like to say that I had a very wonderful experience,And the support, and also understanding with all my requests,I could not ask for a better team!Thank you Emma and also her assistant Rebecca... thank youread more
Kazi H.
13:38 13 Dec 23
Work cover fund is GOVT’S money but insurer think that it is from their 14th generation. So only they can have it. Not only that, people from the work, IME doctor from insurer, back to work... coordinator from work, Rehab provider from any side push the worker as hard as possible that the worker (doesn’t matter how the workers mental or psychical condition) either go back to his pre injury duty or leave the job.More over on that very bumpy any difficult journey some of them only treat the worker as a MONEY MAKING MECHINE .in some point worker feels like, no rooms to breath. On that moment need someone to support legally, someone to care, someone to relive.On my case I believe that, somehow, I manage to make my God happy. That’s why God sends me to Matthew Gerling and his team Allison, Rebecca and Nathan, and all of GARLING & co Lawyers.I am not good enough in English, can’t express my gratitude.Matthew, Allison, Rebecca and Nathan, please accept my appreciation and pass it to others.read more
Carol L.
01:32 29 Nov 23
Professional, understanding and friendly
Sean G.
23:21 14 Nov 23
Matthew Garling and everyone I spoke to at Garling and Co were kind, caring and compassionate. They were sensitive to my psychological condition and were patient in explaining everything to me, so... that I clearly understood the legal process. I am exceptionally grateful for the settlement outcome that Garling and Co obtained for me. Many thanks.read more
waqas A.
08:33 13 Nov 23
Great Experience with Garling & Co. Matthew explained everything in detail during the first appointment. Allison, Nathan, Rebecca and the staff have been extremely helpful. Thank You to the team and... lawyers at Garling & Co. for making the long process easy for me and getting an excellent outcome for my compensation claim.I would highly recommend Garling & Co. Lawyersread more
Saskia L.
21:42 08 Nov 23
The world of workers compensation is long, hard and confusing, but Emma and Rebecca at Garling & Co always treated my case with kindness, respect and understanding. No question was ever silly and... they always had time to make sure I knew what would happen next and how we could best prepare. I am so thankful for their expertise and could not have chosen anyone better to represent me.read more
Antonio P.
08:46 06 Nov 23
Thank you Matthew and his team for taking care of my case couldn’t ask for a better results and couldn’t have better team to do that thank you
Julie M.
00:40 06 Nov 23
Garlic & Co Lawyers have been wonderful, supporting me through some difficult times. With their assistance, positive outcomes were achieved. Many thanks to the Team.Julie
READ ALL TESTIMONIALS

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Kimberly B.
23:14 14 Feb 24
Mathew is very knowledgable and has been of great assistance to me. All the staff are friendly and helpful. I'm so happy I found this firm.Thank you Mathew and team for your great work in my case.... I am 100% happy with what you achieved for me.read more
Julie M.
10:16 16 Jan 24
My last stage of Workers compensation claim was managed by Emma Perkins, Natasha Stojanovic, Rebecca Dunshea and Kelli Robinson at Garling and Co. Lawyers who went the extra mile with their service... from the beginning to the end of 3 years of my case. I have become very anxious with almost everything after a workplace injury and a lot of times I probably ask more questions than I need to, but Emma Perkins always finds clear answers to my questions in a short time and explains to me patiently even using her mealtime or between her meeting and make me feel that I have been very well take care and supported. I am so grateful and extremely satisfied. The excellent service, attitude, and culture of Metthew Garling and his team are second to none with a very high success rate. If you going to battle with your workplace injury for a short or long period, you are better off with Garling and Co. lawyers who are able back you up every step of the way. I strongly recommend it to anybody who needs their service like me. Julieread more
patrick P.
01:46 19 Dec 23
I like to say that I had a very wonderful experience,And the support, and also understanding with all my requests,I could not ask for a better team!Thank you Emma and also her assistant Rebecca... thank youread more
Kazi H.
13:38 13 Dec 23
Work cover fund is GOVT’S money but insurer think that it is from their 14th generation. So only they can have it. Not only that, people from the work, IME doctor from insurer, back to work... coordinator from work, Rehab provider from any side push the worker as hard as possible that the worker (doesn’t matter how the workers mental or psychical condition) either go back to his pre injury duty or leave the job.More over on that very bumpy any difficult journey some of them only treat the worker as a MONEY MAKING MECHINE .in some point worker feels like, no rooms to breath. On that moment need someone to support legally, someone to care, someone to relive.On my case I believe that, somehow, I manage to make my God happy. That’s why God sends me to Matthew Gerling and his team Allison, Rebecca and Nathan, and all of GARLING & co Lawyers.I am not good enough in English, can’t express my gratitude.Matthew, Allison, Rebecca and Nathan, please accept my appreciation and pass it to others.read more
Carol L.
01:32 29 Nov 23
Professional, understanding and friendly
Sean G.
23:21 14 Nov 23
Matthew Garling and everyone I spoke to at Garling and Co were kind, caring and compassionate. They were sensitive to my psychological condition and were patient in explaining everything to me, so... that I clearly understood the legal process. I am exceptionally grateful for the settlement outcome that Garling and Co obtained for me. Many thanks.read more
waqas A.
08:33 13 Nov 23
Great Experience with Garling & Co. Matthew explained everything in detail during the first appointment. Allison, Nathan, Rebecca and the staff have been extremely helpful. Thank You to the team and... lawyers at Garling & Co. for making the long process easy for me and getting an excellent outcome for my compensation claim.I would highly recommend Garling & Co. Lawyersread more
Saskia L.
21:42 08 Nov 23
The world of workers compensation is long, hard and confusing, but Emma and Rebecca at Garling & Co always treated my case with kindness, respect and understanding. No question was ever silly and... they always had time to make sure I knew what would happen next and how we could best prepare. I am so thankful for their expertise and could not have chosen anyone better to represent me.read more
Antonio P.
08:46 06 Nov 23
Thank you Matthew and his team for taking care of my case couldn’t ask for a better results and couldn’t have better team to do that thank you
Julie M.
00:40 06 Nov 23
Garlic & Co Lawyers have been wonderful, supporting me through some difficult times. With their assistance, positive outcomes were achieved. Many thanks to the Team.Julie
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
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University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
The law society of nsw professional standards scheme logo.
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