To decline any aspect of a worker’s compensation claim, the insurer must issue a dispute notice which is now called a Section 78 Notice.
Recent changes to the workers compensation legislation have now combined the prior notices to dispute a claim under Section 54 and Section 74 into a single dispute notice under Section 78.
This means that if an insurer intends to dispute liability for any aspect of your claim such as
- Decline the claim for any reason or;
- Discontinue or reduce weekly payments or;
- Not to pay for medical treatment.
The insurer must issue a dispute notice under Section 78 of the Workplace Injury Management and Workers Compensation Act 1998.
A Section 78 Notice must be given to the worker and the employer and must contain a readily understandable statement of the reasons for the insurer’s decision to decline the claim or reduce weekly payments.
The notice must also contain a copy of all documents including witness statements, medical report and other evidence that the insurer relies upon to decline your claim.
Once an insurer has issued a Section 78 Notice setting out the reasons for declining the claim and the evidence upon which it is based, the injured worker is entitled to challenge that decision and seek the assistance of a lawyer to do so. All legal costs involved in challenging such a decision are paid for by WIRO.
There are two ways to challenge a Section 78 Notice:-
- Request an internal review of the decision from the insurer; and/or
- Make an application to the Workers Compensation Commission of NSW to appoint an independent Arbitrator to hear and determine the issue in a dispute raised in the notice.
In our experience, requesting an internal review from the insurer generally never results in the decision being changed or overturned. It is usually a waste of time and only allows the insurer to “fix up” their reasons for declining the claim in the first place. Often the insurer’s original Section 78 Notice is misguided, does not contain enough evidence or is often defective and can be easily defeated in the Workers Compensation Commission.
If you request a review, this often allows the insurer to “fix up” the decision and make it more difficult to challenge.
In our experience, it is much better to speak directly to an Accredited Specialist in Personal Injury Law and seek funding from WIRO to challenge the decision in the Workers Compensation Commission of NSW.
The insurer is then “stuck” with the reasoning for declining the claim as outlined in the Section 78 Notice and cannot add or change the reasons for declining the claim.
An application can be made by your lawyer to the Workers Compensation Commission to appoint an independent Arbitrator to hear and determine the dispute once further evidence has been obtained on your behalf.
To obtain the relevant factual and medical evidence to dispute the insurer’s decision usually involves a period of about 3 months to obtain necessary medical records from your treating doctors, arrange for you to attend an independent medical examination to obtain further medical evidence and prepare statements.
Once all medical and other evidence is available to support your claim, an application can be filed in the Workers Compensation Commission to dispute the decision by the insurer as outlined in the Section 78 Notice.
It usually takes then a further two to three months for a matter to be listed before an independent Arbitrator who will hear and determine the dispute.
You are not required to pay any legal costs and disbursements as all such costs are paid through the Independent Legal Assistance & Review Service (ILARS) which is a department of WIRO, the Workers Compensation Independent Review Office.
Your Lawyers are paid directly by WIRO for all legal costs and disbursements.
GARLING AND CO LAWYERS
About Matthew Garling.
Matthew Garling, Founder of Garling & Co is a NSW Law Society Accredited Specialist in Personal Injury Law. He specialises in compensation law and has acted on behalf of thousands of injured people in work accidents, motor vehicle accidents and negligence cases over the last 20 years.
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