Continuing from Part 1, which outlined the 130-week review framework, the key changes to weekly payments entitlements, and how insurers begin forming early assessments of capacity and impairment well before a formal decision is made. In Part 2, we turn to the different types of decisions that WorkCover insurers may make at the 130-week review stage, and how each pathway can significantly affect a worker’s ongoing entitlements. We also examine the available dispute mechanisms, including the role of the Workplace Injury Commission, Medical Panels, and court proceedings.
Understanding Termination Determinations
A “determination” is a definitive decision to terminate payments based on:
- No ongoing incapacity
- Impairment at or below 20% or
- Both factors combined
Dispute Pathways
Where both capacity and impairment are in issue:
- The matter proceeds through WIC
- From WIC, it may involve
- Medical Panel referral
- Genuine dispute certificate
- Court proceedings
Where only capacity is disputed:
- The pathway is broader from WIC
- Matters that result in a GD may proceed to
- WCIRS
- Arbitration
- Court
- Medical Panel
Administrative Decisions
In some cases, the insurer will make decisions based on impairment without sending the worker for assessment.
This occurs where:
- There is no reasonable prospect of exceeding the 20% threshold; or
- The worker clearly exceeds it
These decisions are controversial because:
- They rely on internal estimates rather than an independent impairment assessment by a qualified doctor
- Workers are denied the opportunity for formal evaluation
What Can Be Challenged?
- The decision to not arrange an assessment
- The accuracy of the WPI estimate
Dispute Pathways
- WIC
- Insurer direct referral to Medical Panel
From WIC administrative decisions can only take the following paths as they involve impairment:
- Agreed outcome e.g., that the worker’s WPI is assessed
- Referral to medical panels
- Genuine dispute
Interim Decisions: Temporary but Impactful
Interim decisions arise where impairment cannot yet be properly assessed—for example:
- Injury not stabilised
- Insufficient medical information
- Worker is under 18
These decisions are temporary, but can still result in termination, thereby causing significant financial hardship to workers who cannot yet return to work.
What Can Be Challenged?
- The reason for the interim decision e.g. the worker’s stability
- The accuracy of the WPI estimate
If the outcome of the dispute regarding stability is that the worker’s condition is in fact not stable, they will remain without income until such time as the condition stabilises, is re-assessed and found to meet the minimum threshold.
Dispute Pathways
Interim decisions can only be disputed via WIC. From there, the outcomes can be:
- Outcome dealing with the stability or lack of information issue
- Genuine Dispute
- Medical panel
Endless Loop
Even if workers are successful in disputing the termination of payments on one ground, keep in mind that it is still open to the insurer to issue another termination notice on a ground that was not mentioned in the original notice.
Caution
Workers and their lawyers should exercise caution when disputing weekly payment termination decisions as the outcome can impact other entitlements.
- A medical panel opinion on impairment will most likely be final and binding for the body parts assessed. This means the same assessment will apply to an impairment benefit application.
- A court decision regarding compensable injuries will most likely impact what can be claimed through an impairment benefit application and common law claim.
It is now more essential than ever that workers receive legal advice regarding the review of their weekly payment entitlements at 130 weeks.
Robinson Gill are expert WorkCover lawyers who can provide the guidance required to give your claim its best chance of success.
Contact us on 03 9890 3321.
How can I learn more?
Lisa Paul.
Principal Lawyer.
Lisa is a principal lawyer in the personal injury team at Robinson Gill. An Accredited Specialist in Injury Law, Lisa is a veteran advocate with extensive experience across the full spectrum of personal injury matters. Driven by a particular interest in cases on behalf of those injured in the course of their work, she specialises in worker’s compensation matters, however she is equally as passionate about TAC and public liability claims.
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