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

Updated on March 04, 2022 | 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.

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...
Yanthi S.
01:51 18 May 22
I engaged with Garling and Co to assist me for my weekly payment dispute with the insurance. I was upset with Natasha, as she didn't prepare me to the worse outcome or kind of negotiation in the... hearing. I assumed that as a Lawyer she should experience with the process or the way to solve the case. Even though I asked her what should I do or what would be happened in the hearing a week before but she didn't mentioned anything, and told me not do anything. But in the hearing she and the Arbitrator only gave me less than 5 minute to make decision and pushed me to accept the disappointed outcome and what she said totally different with what she said earlier. I don't trust her at all, her words is not consistent.I would like to express my appreciation to Matthew Garling who had stepped in to handle my weekly payment issue with the insurance. He is very professional, knowledgeable, easy to talk to and very humble. My disappointment earlier has melted away by his kindness and caring to resolve my issue which has came out the great outcome. Now I am satisfied with his expertise therefore I would not hesitate to let him to handle the case I might have in the future.read more
Lynda S
00:34 04 May 22
For such complicated matters, it is extremely important to have a good team in your corner. The right team.Garling and co is just that and much more.They listen to you and care. They support you... during the entire process. You will have so many questions and they always return your calls and reply to your emails.Thank you so much to Renee, who explained everything to me and what to expect in details and really reassured me. The process felt less heavy and stressful because she was there. She was professional and so efficient. She took over my case from previous lawyer and I wish I could have met her first. She was available to answer the many questions I had along the way. There is also Kelli, she was the first person I got on the phone most of the time when I called and she is nice and very helpful, I had so many questions and doubts, I was stressed yet she had the patience to explain and seek answers to my questions.Natasha took over my case towards the end and she also was great in listening and supporting me and made sure to defend my best interests against the other side at all time.The Worker’s compensation process is very stressful, it can last for a long period. In my case it was three years and it is to the upmost importance to have people who treats you well, are professional and efficient.I am very satisfied with the outcome and I hope that this reviews helps the next person.Your assistance made the difference and I would have not been able to do it without your precious help.read more
Melinda B.
23:57 04 Apr 22
Workers compensation and the medical-legal process is a complicated and a difficult process.If you are looking for a highly professional compensation/personal injury lawyer, I would without... hesitation definitely recommend Matthew Garling who is a genuine, caring & dedicated lawyer.Matthew, Allison Luck and co. are extremely professional, clear and concise with all communication and an exceptional support during the whole process of my claim, I felt confident and secure that I had made the right decision having Matthew represent me, they worked tirelessly and where 100% committed to getting me the best possible outcome.My case was complicated and Matthew never gave up fighting for me, he didn’t just take the first option for a quick and easy resolution.He and his team got me the best possible outcome for my WPI and I will be forever grateful for their hard work and diligence. I now have peace of mind knowing I have lifetime medical assistance and payment till retirement age.read more
Jim M.
12:25 27 Mar 22
Garling and Co lawyers you have done again with Success for my TPD claim! Ms. Emma Perkins and her team have assisted my TPD claim with great success after the hard work, She is a very down-to-earth... person, professional, and highly knowledgeable with insurance claim law. She is very approachable and always willing to help and often reply my question of email after business hours. I will most delighted to recommend Garling and Co Lawyers. Ms. Emma Perkins and her team to any person who needs insurance claim law service like me. by Julieread more
Anthony N
22:13 17 Mar 22
I had Garling & Co Lawyers handle my workplace dispute, I could not be happier with the outcome, handled in such a professional way with excellent communication throughout the entire process.Natasha... and Kelli were very understanding in every aspect, requesting information via phone or email was never an issue, fast response times and helpful in every way. I HIGHLY RECOMMEND the team @ Garling & Co Lawyers. 👍read more
Yvonne M.
05:03 21 Jan 22
Zee
14:20 15 Jan 22
I would like to thank the entire team at Garling and Co for being in my corner throughout the worst years I've experienced in my life.I chose Garling and Co in the end after being seriously injured... at work and needing representation, something I should have done years prior.I met with over 12 other legal firms in Sydney. Large,medium, small and all in between. Some were friends, some family, some were sharks, many were pressuring, many promised the world, Matthew was not like that.Matthew was the benchmark as he was one of the first I spoke with and ultimately he stood out in the end as I felt he was the most genuine.From the outset to the conclusion, I found Matthew to be very polite, easy to communicate with and extremely down to earth.He explained everything simply, he had answers for any questions along the way. He told me it how it was, not just what I wanted to hear.Matthew is a genuine nice guy that runs a very efficient and professional law firm. I made the correct choice engaging him in my claims and would not hesitate in recommending him.Renee was also terrific in handling my TPD claim which was literally finalised faster then international postage.Allison, Rebecca and Kelli were all great, always.Thanks again Garling and Co.read more
mark S.
06:30 23 Dec 21
I found from my very first meeting With Matthew that he was upfront honest and to the point . He thoroughly investigated my claim and we agreed too proceed.The staff at Garling and Co are wonderful... and helpful and I was kept informed and upto date from day one till the end .They made me feel confident and secure and I know I had the best team possible for my best outcome .I can’t thank Matthew and the team for their wonderful serviceread more
Daniel F.
08:48 10 Nov 21
My wife suffered psychological injury.Never having similar experience she had to get legal advice.Workers compensation law is complex and she needed someone to help her navigate her way through.... There are many compensation lawyers but not all with enough experience and strong reputation . We have finally decided to go with Matthew and his team based on the independent website reviews .Looking back now we have made the right choice .There is lot of hurdles and having trustworthy lawyer with great communication skills on your side can make huge difference .My wife can now try to move on with the compensation she deserved.Thanks to Matthew ,Allison ,Emma,Rebecca and rest of the team. Thank you again.Daniel and Veerayaread more
K B.
07:35 28 Oct 21
When you work for an employer for a number of decades and suffer a debilitating injury, you expect compassion, support and belief that you are genuine. When you don’t get that and then also have to... deal with Workers Compensation Insurers it slowly breaks you.That's when you need amazing support like Matthew Garling and his team. From my first meeting with Matthew I was confident I was referred to the right guy. I couldn’t be more pleased with my outcome. Matthew is the Guru of workers compensation, he is professional, easy to work with, nothings a bother and most importantly he gets great results. Do not think twice about using Garling and Co Lawyers.Thank you Matthew, Renee, Allison and Kelli for your invaluable support.read more
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Yanthi S.
01:51 18 May 22
I engaged with Garling and Co to assist me for my weekly payment dispute with the insurance. I was upset with Natasha, as she didn't prepare me to the worse outcome or kind of negotiation in the... hearing. I assumed that as a Lawyer she should experience with the process or the way to solve the case. Even though I asked her what should I do or what would be happened in the hearing a week before but she didn't mentioned anything, and told me not do anything. But in the hearing she and the Arbitrator only gave me less than 5 minute to make decision and pushed me to accept the disappointed outcome and what she said totally different with what she said earlier. I don't trust her at all, her words is not consistent.I would like to express my appreciation to Matthew Garling who had stepped in to handle my weekly payment issue with the insurance. He is very professional, knowledgeable, easy to talk to and very humble. My disappointment earlier has melted away by his kindness and caring to resolve my issue which has came out the great outcome. Now I am satisfied with his expertise therefore I would not hesitate to let him to handle the case I might have in the future.read more
Lynda S
00:34 04 May 22
For such complicated matters, it is extremely important to have a good team in your corner. The right team.Garling and co is just that and much more.They listen to you and care. They support you... during the entire process. You will have so many questions and they always return your calls and reply to your emails.Thank you so much to Renee, who explained everything to me and what to expect in details and really reassured me. The process felt less heavy and stressful because she was there. She was professional and so efficient. She took over my case from previous lawyer and I wish I could have met her first. She was available to answer the many questions I had along the way. There is also Kelli, she was the first person I got on the phone most of the time when I called and she is nice and very helpful, I had so many questions and doubts, I was stressed yet she had the patience to explain and seek answers to my questions.Natasha took over my case towards the end and she also was great in listening and supporting me and made sure to defend my best interests against the other side at all time.The Worker’s compensation process is very stressful, it can last for a long period. In my case it was three years and it is to the upmost importance to have people who treats you well, are professional and efficient.I am very satisfied with the outcome and I hope that this reviews helps the next person.Your assistance made the difference and I would have not been able to do it without your precious help.read more
Melinda B.
23:57 04 Apr 22
Workers compensation and the medical-legal process is a complicated and a difficult process.If you are looking for a highly professional compensation/personal injury lawyer, I would without... hesitation definitely recommend Matthew Garling who is a genuine, caring & dedicated lawyer.Matthew, Allison Luck and co. are extremely professional, clear and concise with all communication and an exceptional support during the whole process of my claim, I felt confident and secure that I had made the right decision having Matthew represent me, they worked tirelessly and where 100% committed to getting me the best possible outcome.My case was complicated and Matthew never gave up fighting for me, he didn’t just take the first option for a quick and easy resolution.He and his team got me the best possible outcome for my WPI and I will be forever grateful for their hard work and diligence. I now have peace of mind knowing I have lifetime medical assistance and payment till retirement age.read more
Jim M.
12:25 27 Mar 22
Garling and Co lawyers you have done again with Success for my TPD claim! Ms. Emma Perkins and her team have assisted my TPD claim with great success after the hard work, She is a very down-to-earth... person, professional, and highly knowledgeable with insurance claim law. She is very approachable and always willing to help and often reply my question of email after business hours. I will most delighted to recommend Garling and Co Lawyers. Ms. Emma Perkins and her team to any person who needs insurance claim law service like me. by Julieread more
Anthony N
22:13 17 Mar 22
I had Garling & Co Lawyers handle my workplace dispute, I could not be happier with the outcome, handled in such a professional way with excellent communication throughout the entire process.Natasha... and Kelli were very understanding in every aspect, requesting information via phone or email was never an issue, fast response times and helpful in every way. I HIGHLY RECOMMEND the team @ Garling & Co Lawyers. 👍read more
Yvonne M.
05:03 21 Jan 22
Zee
14:20 15 Jan 22
I would like to thank the entire team at Garling and Co for being in my corner throughout the worst years I've experienced in my life.I chose Garling and Co in the end after being seriously injured... at work and needing representation, something I should have done years prior.I met with over 12 other legal firms in Sydney. Large,medium, small and all in between. Some were friends, some family, some were sharks, many were pressuring, many promised the world, Matthew was not like that.Matthew was the benchmark as he was one of the first I spoke with and ultimately he stood out in the end as I felt he was the most genuine.From the outset to the conclusion, I found Matthew to be very polite, easy to communicate with and extremely down to earth.He explained everything simply, he had answers for any questions along the way. He told me it how it was, not just what I wanted to hear.Matthew is a genuine nice guy that runs a very efficient and professional law firm. I made the correct choice engaging him in my claims and would not hesitate in recommending him.Renee was also terrific in handling my TPD claim which was literally finalised faster then international postage.Allison, Rebecca and Kelli were all great, always.Thanks again Garling and Co.read more
mark S.
06:30 23 Dec 21
I found from my very first meeting With Matthew that he was upfront honest and to the point . He thoroughly investigated my claim and we agreed too proceed.The staff at Garling and Co are wonderful... and helpful and I was kept informed and upto date from day one till the end .They made me feel confident and secure and I know I had the best team possible for my best outcome .I can’t thank Matthew and the team for their wonderful serviceread more
Daniel F.
08:48 10 Nov 21
My wife suffered psychological injury.Never having similar experience she had to get legal advice.Workers compensation law is complex and she needed someone to help her navigate her way through.... There are many compensation lawyers but not all with enough experience and strong reputation . We have finally decided to go with Matthew and his team based on the independent website reviews .Looking back now we have made the right choice .There is lot of hurdles and having trustworthy lawyer with great communication skills on your side can make huge difference .My wife can now try to move on with the compensation she deserved.Thanks to Matthew ,Allison ,Emma,Rebecca and rest of the team. Thank you again.Daniel and Veerayaread more
K B.
07:35 28 Oct 21
When you work for an employer for a number of decades and suffer a debilitating injury, you expect compassion, support and belief that you are genuine. When you don’t get that and then also have to... deal with Workers Compensation Insurers it slowly breaks you.That's when you need amazing support like Matthew Garling and his team. From my first meeting with Matthew I was confident I was referred to the right guy. I couldn’t be more pleased with my outcome. Matthew is the Guru of workers compensation, he is professional, easy to work with, nothings a bother and most importantly he gets great results. Do not think twice about using Garling and Co Lawyers.Thank you Matthew, Renee, Allison and Kelli for your invaluable support.read more
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