2.6.5 Employers and eligibility decisions
2.6.5 Employers and eligibility decisions | 2.6.5 Employers and eligibility decisions | 2.6.5.3 Employer lodges formal objection on Worksafe | 2.6.5.4 Employer’s right of appeal to Supreme Court
2.6.5.1 Engaging employers during the investigation of a claim
Employers have an important role in the eligibility process. They often hold key information that can assist the Agents in making an informed decision about the liability for a claim.
Agents must proactively engage with employers and keep them informed during the eligibility investigation to support procedural fairness. This includes keeping employers informed about the progress of the claim and providing opportunities for them to share relevant information, ask questions and raise concerns before a decision is made.
Agents must:
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Make initial contact- On receiving a claim Agents must contact the employer to confirm the claim details and gather any relevant information, including any initial views on liability.
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Engage employers in circumstance investigations (if conducted)- Where a circumstance investigation is arranged, Agents must ensure the Investigator contacts the employer to seek their input into the investigation and provide any further supporting documentation.
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Discuss the pending decision- Before a decision is made, Agents must contact the employer to explain the likely outcome and provide an opportunity to ask questions or raise any concerns.
An employer can requests reasons for an Agent’s decision to accept or reject a claim
See: 1.2.15.3 Employer written requests for reasons for a decision
2.6.5.2 Employer objects to a decision to accept
If an employer disagrees with a decision to accept a claim, they should first raise the matter with the Agent and request a review of the decision.
Agents must:
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Escalate the matter internally for further review
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Consider any concerns raised by the employer, including new or supporting information
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Provide a written response to the employer, outlining the outcome and the reasons for the decision
If the matter cannot be resolved, the employer may escalate the matter to WorkSafe. This can be done by lodging:
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a formal objection, where specific criteria are met, or
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a complaint to WorkSafe if the concerns fall outside of the formal objection criteria.
Where an employer lodges a complaint with Worksafe, they will receive a written response once WorkSafe has reviewed the complaint and completed its review.
2.6.5.3 Employer lodges formal objection on Worksafe
An employer can request WorkSafe to review a decision to accept a claim in specific circumstances.
An employer may lodge a formal objection to a decision to accept a claim for compensation if:
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the claim was accepted by the Agent on or after 1 July 2010, and
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the employer believes either of the following applies:
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the alleged worker is not a worker within the meaning of the legislation, and/or
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the claimed employer was not the correct employer of the worker at the time of the injury or death.
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The Agent must:
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continue to manage the worker’s claim.
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ensure that the objecting employer is aware of its ongoing responsibilities.
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assist WorkSafe in gathering any information required to assess the objection.
WorkSafe requests additional information from the employer
If WorkSafe determines that the objection is lacking information or requires clarification, it may request additional material from the employer, and, if needed, suspend the review pending the receipt of the additional information from the employer. If the employer fails to provide the additional information by the specified date, the objection will be deemed to have been withdrawn.
The employer may continue to seek review of the original objection if all of the additional information is provided to WorkSafe within 28 days from the date that the objection was deemed to be withdrawn.
While an objection is being assessed by WorkSafe the worker’s and employer’s rights and obligations continue on the basis of the accepted claim. This includes continuation of entitlements and return to work obligations.
WorkSafe declines to conduct a review
WorkSafe may decline to conduct a review if:
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the objection related to a decision already reviewed by WorkSafe, and
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the employer has already been provided with a written determination, and has not submitted any new information, or
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the objection is considered to be misconceived or lacking in substance
If WorkSafe declines to conduct a review, WorkSafe must notify the employer in writing within 28 days of receiving the objection.
WorkSafe’s provides a written determination
After reviewing an objection, WorkSafe will write to the claimed employer and Agent to either:
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confirm the Agent’s decision to accept the claim for compensation against the claimed employer, or
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set aside the Agent’s decision to accept the claim for compensation against the claimed employer.
WorkSafe will provide a formal written determination with detailed reasons.
If the outcome of the objection results in WorkSafe confirming the Agent’s decision to accept the claim for compensation then the worker continues to receive entitlements in accordance with the legislation.
WorkSafe sets aside the Agents decision to accept the claim
If the decision is that the worker is either:
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not a worker under the legislation, or
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not a worker of the claimed employer at the time of the injury or death
Then the Agent must give the worker and employer 28 days’ notice before stopping all compensation payments. This includes weekly payments and medical and like expenses. The Agent will not seek to recover any compensation payments already made to the worker.
From the date of the decision, the employer is no longer required to meet return to work (RTW Return to Work) obligations.
If the claim is set aside because the person is not a worker or not a worker of the claimed employer, the worker can:
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Submit a new claim: The worker can give, serve or lodge a new Worker’s Injury Claim Form with the correct employer. The new claim will be assessed by that employer’s Agent in accordance with the legislation. Claims cannot be transferred between employers by an Agent or by WorkSafe.
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Appeal the decision to the Workplace Injury Commission (WIC Workplace Injury Commission): The worker may appeal the decision to WIC as if the Agent had rejected the claim. This allows the worker to seek a review of the decision to deny liability for the injury.
Process to lodge an objection
Follow these steps to lodge an objection to acceptance of liability for a claim.
| Who | Action |
|---|---|
| Employer |
The employer can lodge an objection within 60 days of receiving the notice to accept the claim. The objection must be lodged in writing using the approved form and:
The employer must send the objection to premium_review@worksafe.vic.gov.au or via mail to: Manager - Premium Review
|
| Agent | If the objection is received by the Agent, the Agent must send the objection to WorkSafe within five working days |
| WorkSafe |
WorkSafe writes to the employer, worker and Agent acknowledging that an objection has been received, within 10 days of receipt of the objection. WorkSafe must provide its decision within 90 days of receiving the objection unless WorkSafe has provided the claimed employer with written notice extending the period. Failure by WorkSafe to notify the employer of a decision within 90 days and to advise the employer of an extended period will result in deemed confirmation of the Agent’s acceptance of the liability of the claim. WorkSafe will notify the employer, worker and Agent of the outcome of the review. |
| Agent |
If notified by WorkSafe that the employer’s objection has been upheld, the Agent reviews the worker’s claim for compensation for the purpose of terminating all entitlements to weekly payments and/or medical and like expenses. Note: The Agent’s decision letter must include the standard review paragraphs as the ‘worker’ may refer the decision to reject their claim for entitlements to the WIC for review. |
2.6.5.4 Employer’s right of appeal to Supreme Court
The claimed employer has a right to appeal to the Supreme Court if:
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they are dissatisfied with WorkSafe’s decision
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WorkSafe declines to conduct a review of the objection
This must be done within 60 days of:
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receiving WorkSafe’s decision or notice declining to conduct a review, or
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the date the claim is deemed to have been accepted.