3.3.4 Review of entitlement approaching the end of the second entitlement period
3.3.4.1 Preparing for the SEP (130 week) review | 3.3.4.2 Impairment assessment for SEP (130 week) review | 3.3.4.3 Capacity assessment for SEP (130 week) Review | 3.3.4.4 Worker advised of 130 week decision | 3.3.4.5 Worker disputes ongoing eligibility determination |3.3.4.6 Ongoing eligibility determinations after interim determinations | 3.3.4.7 Invite worker to make an impairment benefit claim | 3.3.4.8 Dispute pathways for SEP determinations | 3.3.4.9 Unstable Medical Panel opinions
A worker is not entitled to weekly payments after the expiry of the second entitlement period unless:
-
the worker has no current work capacity Under the legislation, unless inconsistent with the context or subject-matter — current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment, declared training program and this is likely to continue indefinitely (NCI No Capacity Indefinitely); and
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for claims reaching 130 weeks on or after 31 March 2024, the worker’s whole person impairment (WPI Whole person impairment) has been determined as 21% or more, based on all injuries and or illnesses arising from the same event or circumstance.
Before the end of the second entitlement period the Agent /or Self-insurer must review the claim to determine if the worker will have an ongoing entitlement to weekly payments. This second entitlement period (SEP) review, also known as the 130 week review, considers the worker’s:
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work capacity (capacity assessment) and
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for claims reaching 130 weeks on or after 31 March 2024, degree of whole person impairment.
At the outcome of the review, the Agent or Self-Insurer must advise the worker of the determination to cease or maintain weekly payments.
3.3.4.1 Preparing for the SEP (130 week) review
Timing of review
Agents and Self-Insurers should begin the review process by no later than week 78 to allow enough time for:
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compensable injuries and or illnesses arising from the same event or circumstance to be identified for impairment assessment purposes;
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any assessments of the worker’s work capacity and/or impairment to be undertaken
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an entitlement decision to be made by week 116
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the required notice period under the legislation to be provided to the worker if the worker’s weekly payments are to cease
Identifying an injury or illness
To assist in identifying injuries or illnesses when making an impairment determination, Agents and Self-Insurers should:
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review the worker’s claim form, treating medical practitioner reports, forms, incident/accident reports and any other documentation submitted by the worker
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determine if the injuries arise from the same or from multiple events or circumstances
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where there is uncertainty around the identification of injuries or illnesses, request additional treating practitioner reports (using the worker’s medical authority on the claim form)
It is critical that Agents make robust and evidence based decisions at this stage as to which injuries to include in the SEP review to assist with liability determinations for any future IB Impairment Benefits claim.
See: Guidelines to determine liability
Multiple injuries or illnesses on different occasions
Only injuries arising out of the same event or circumstance can be the subject of an impairment determination for the purpose of the SEP review.
Where the weekly payments claim relates to injuries arising from multiple events or circumstances, there needs to be an impairment assessment or determination for each event or circumstance. The event or circumstance that yields the highest WPI will be relied on in the SEP review for the purposes of ongoing eligibility determination.
Process
Follow these steps to prepare for the 130 week review:
| Step | Action |
|---|---|
|
Obtain important medical information |
The Agent or Self-Insurer should obtain relevant medical information before commencing the 130 week review. This may include:
The Agent or Self-Insurer should also request medical information from the worker’s treating practitioners to confirm whether there is any impending surgery, and/or whether stabilisation has been reached. |
| Confirm week count and due dates |
The Agent or Self-Insurer must confirm:
Note: claims reaching 130 weeks:
|
| Confirm any Impairment Benefits (IB) claim | The Agent or Self-Insurer must confirm if there is any current or prior IB activity on the claim (such as IB claim lodged, IIA report received). |
| Complete an Initial Eligibility Review (IER) |
The Impairment Specialist completes an IER to identify:
See: Guidelines to determine liability If an IB claim has been made by the worker, the WPI determined in the IB claim should be used for the 130 week review. |
| Provide worker with information |
The Agent or Self-Insurer should provide the worker with information about:
See: Transition Support Service | HelpConnect Where applicable, the Agent or Self-Insurer should provide the worker with other relevant information such as information about occupational rehabilitation. See: OR Services |
Assessments that should be undertaken based on injury type
Physical injuries
| Estimated WPI | Impairment assessment by IIA | Capacity assessment |
|---|---|---|
| 12% or less | Not required - administrative determination can be made | Not required, unless WPI is ultimately assessed as 16% or more. |
|
13%-15% |
Required (unless already arranged as part of IB claim). |
Not required, unless WPI is ultimately assessed as 16% or more |
| 16%-26% |
Required (unless already arranged as part of IB claim). |
Required |
| 27% or more | Not required - administrative determination can be made | Required |
Primary psychiatric injuries
| Estimated WPI | Impairment assessment by IIA | Capacity assessment |
|---|---|---|
| 9% or less | Required (unless already arranged as part of IB claim) | Not required, unless WPI is ultimately assessed as 10% or more. |
|
10% or more |
Required (unless already arranged as part of IB claim). |
Required |
Note: Refer below for further detail about making WPI determinations (including administrative and interim).
3.3.4.2 Impairment assessment for SEP (130 week) review
A worker’s whole person impairment (WPI) must be assessed or determined as the worker approaches the end of the second entitlement period.
WPI is based on all injuries and illnesses arising from the same event or circumstance.
WPI is the measurement used to determine the percentage of impairment suffered as a result of their compensable injuries or illnesses. The impairment is the greater of the worker’s:
-
degree of impairment resulting from one or more physical compensable injuries, or
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degree of impairment resulting from one or more psychiatric injuries (excluding any secondary psychiatric injuries).
See: Psychiatric injury
A worker’s WPI can either be:
-
assessed by an independent impairment assessor (IIA Independent impairment assessment); or
-
-
it is considered not necessary or practicable to refer the worker for an assessment by an IIA. This determination is called an ‘administrative determination’.
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a worker’s WPI cannot be assessed by an IIA (e.g. their injury has not stabilised). This determination is called an ‘interim determination’.
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Where a worker’s WPI has already been determined through their IB claim, that WPI must be used for the purposes of the SEP Review.
Independent impairment assessments
Agents and Self-Insurers should arrange for an Independent Impairment Assessor (IIA) to conduct a whole person impairment assessment when all accepted injuries have stabilised. Alternatively, Agents can consider whether an administrative or interim determination could be made based on the guidance outlined.
Where one or more injury is not stable and the IIA has already been booked, the Impairment Specialist must cancel the examination and schedule a new IIA appointment once all accepted injuries have stabilised.
See: Independent impairment assessors (IIA) | Stabilisation of injuries
Reviewing IIA reports
Once received, an Impairment Specialist must review the IIA report and verify:
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the worker has been assessed for all accepted injuries and/or illnesses and
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the assessor has specified in the report:
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a percentage WPI for the injuries referred to the examiner
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an opinion on whether the worker has suffered a total loss injury mentioned in the no disadvantage compensation table
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a correctly combined whole person impairment
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if any psychiatric impairment has been assessed in accordance with The Guide to the Evaluation of Psychiatric Impairment for Clinicians
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any impairment from pre-existing or unrelated injuries or causes has been disregarded
-
-
whether there is any deviation of impairment determinations between the IIA’s assessment and the Impairment Specialist estimated WPI.
See: Review IIA report | Combining impairment level of multiple injuries | Deviation of impairment determinations
Administrative determinations
Administrative determinations can be made where it is not necessary or practicable for an IIA to assess a worker’s impairment (s167C). An administrative determination is an ongoing eligibility determination and only relevant to the worker’s entitlement to weekly payments after the expiry of the second entitlement period.
The Agent or Self-Insurer should only make an administrative determination of a worker’s WPI regarding physical injuries if any of the following apply:
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the worker's degree of impairment for physical injuries has been estimated at 12% or less; or
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the worker's degree of impairment for physical injuries has been estimated at 27% or more and is likely to be the case permanently; or
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it is not reasonable or practicable for the worker to attend an assessment by an IIA (e.g. the worker resides overseas or interstate or has an unrelated debilitating medical or health condition).
Administrative determinations in respect of psychiatric injuries:
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cannot be made for primary (non-secondary) psychiatric injuries;
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for secondary psychiatric injuries, Agents should not have regard to these injuries when determining WPI (s56).
The Agent and Self-Insurer must have regard to the following when making an administrative determination of a worker’s WPI:
-
the available medical evidence
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whether the worker’s degree of impairment resulting from an injury is likely to be permanent
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any practical barriers to the worker being assessed by an IIA
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whether determining the degree of impairment of the worker without an IIA is likely to disadvantage the worker.
Sign off for administrative determinations
The Agent must seek WorkSafe’s approval on any proposed administrative determinations where the WPI is estimated as 27% or more. Seek approval by emailing WorkSafe’s SER Inbox indicating the degree of impairment, the rationale for an administrative determination and a summary of the evidence.
All other administrative determinations must be signed off by an authorised and suitably qualified person within the Agent.
See: Capacity assessment for SEP (130 week) Review | Worker advised of ongoing eligibility determination
Note: If a worker makes an IB claim following an administrative determination, an IIA assessment must be obtained.
Interim determinations
An interim determination should only be made where the worker’s WPI can’t be assessed. An interim determination is a temporary decision and only relevant to the worker’s entitlement to weekly payments after the expiry of the second entitlement period.
Agents and Self-Insurers can make an interim determination to cease or maintain weekly payments in the following circumstances (s167D(2)):
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a worker’s injury has not stabilised, including diagnosed eligible progressive disease which is unlikely to stabilise
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a worker has multiple injuries arise from the same incident and one or more injuries have not stabilised
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worker is under 18 years old or
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information required to make the WPI determination is not available.
Agents or Self-Insurers must estimate the worker’s WPI for an interim determination based on the worker’s current WPI, and the likely WPI if it were able to be assessed.
The Agent or Self-Insurer should have regard to the following when making an interim determination:
-
any medical evidence relevant to the degree of impairment
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any medical and vocational evidence available about the worker’s work capacity
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information that confirms the worker’s condition has not stabilised (e.g. treater requests for worker to undergo further surgery or treatment).
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whether the worker is under 18 years old
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what further information is required for a WPI determination to be made.
Agents and Self-Insurers must only make an interim determination when satisfied of the below criteria:
| For interim determination to maintain weekly payments | For interim determination to cease weekly payments |
|---|---|
|
|
Prior to making an interim determination, the Agent or Self-Insurer must obtain approval from an authorised, suitably qualified person within their organisation.
See: Capacity assessment for SEP (130 week) Review | Worker advised of ongoing eligibility determination
An interim determination is not a final determination. At any time, the Agent or Self-Insurer may review the interim determination to cease or maintain weekly payments and make:
-
a further interim determination; or
-
an ongoing eligibility determination.
Periodic review of interim determinations
Agents are expected to manage each case on its merits, and acknowledge there may be circumstances where there is both insufficient medical information and an unstable injury. Agents are expected to be aware of actions taken by the claims teams (i.e. determining whether a post-operative report has been requested, obtaining latest treating medical information and IME Independent Medical Examiner / Independent Medical Examination reports).
The minimum requirements for managing the periodic review of an interim decision are as follows:
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file note at time of interim determination, detailing reasons for the determination, including reference to the evidence supporting decision
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documentation on file substantiating workers condition as not stable
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in cases where worker is to undergo surgery/further treatment, determine date/s this is to occur
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obtain prognosis and anticipated timeframes for stabilisation (i.e. THP Treating Health Practitioner report, post-op report)
-
regular file reviews noted on ACCtion to monitor the progression of claim.
Agents should determine a suitable timeframe for review of the claim. However, WorkSafe recommends the following periodic reviews of the information on file and case management action plan as a minimum:
-
once every three months following surgical intervention
-
once every two months for further medical treatment (non-surgical)
-
once every month for asthma or mental injury.
If less time is anticipated for stabilisation, Agents should review the claim more regularly, as deemed appropriate on a case by case basis.
See: Ongoing eligibility determinations after interim determinations
3.3.4.3 Capacity assessment for SEP (130 week) Review
As part of the SEP (130 week) review, Agents and Self-Insurers may need to assess work capacity and whether any incapacity for suitable employment is likely to continue indefinitely (sometimes referred to as NCI).
A capacity assessment is required on claims reaching 130 weeks:
-
before 31 March 2024
-
on or after 31 March 2024 where the WPI has been assessed or estimated as 16% or more.
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on or after 31 March 2024 where the WPI for primary psychiatric injuries has been assessed or estimated as 10% or more.
Agents or Self-Insurers may need to obtain evidence specifically commenting on the worker’s capacity for work. This includes:
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THP reports and independent medical reports
-
vocational assessments, return to work plans and current job offers
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details about any work being undertaken by the worker, to assist the Agent, Self-Insurer or Medical Panel when evaluating an application by the worker for continuation of entitlement to weekly payments after the second entitlement period.
This includes:
-
restrictions in duties and hours
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confirmation from the employer of the actual hours being worked and the worker’s CWE Current Weekly Earnings
-
advice from the employer as to whether they can offer additional or increased hours to increase earnings.
-
See: Independent medical examinations and reports | After the second entitlement period
The incapacity ‘not likely to continue indefinitely’ ground
The incapacity ‘not likely to continue indefinitely’ ground for terminating weekly payments (i.e. the worker has no current work capacity but this is not likely to continue indefinitely) should only be used where:
-
medical opinion confirms that the worker will have a capacity for suitable employment in the foreseeable future
-
the normal or expected course of recovery is that the worker will have a capacity for suitable employment based on evidence-based clinical practice and/or previous experience
-
the duration of the worker's current incapacity can be defined and is proximate (e.g. < 9 months)
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there are reasons why the worker will gain a capacity for suitable employment (e.g. surgery recovery, gaining a qualification etc).
Vocational assessments
As part of the assessment of a worker’s capacity, the Agent or Self-Insurer may arrange a 130 week vocational assessment of the worker. The Agent or Self-Insurer must:
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provide the worker with a list of at least three OR Occupational Rehabilitation providers for the worker to select their preferred provider
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advise the worker that the purpose of the assessment is to identify suitable jobs that the worker has a capacity to perform
-
advise the worker that the outcome could affect the worker’s ongoing entitlement to weekly payments.
See: Approve occupational rehabilitation services
3.3.4.4 Worker advised of 130 week decision
When the Agent or Self-Insurer has made an ongoing eligibility determination, they must send written notice to the worker and if applicable, the employer (s167F).
See: Review of entitlement approaching end of the second entitlement period
Any notice to cease or maintain weekly payments must include:
-
the WPI (only if assessed by an IIA*), and
-
Statement of Injuries - s167B(3), s167C(5), and s167E(2).
Where an interim determination is made, the Agent or Self-Insurer must also advise the worker of the reasons for the interim determination.
Note: Agents should not include the WPI% in notices that rely on interim or administrative determinations.
Statement of Injuries (SOI)
The Agent or Self-Insurer must provide the worker with a statement (referred to as List of Compensable Injuries and/or Illnesses) of the compensable injuries and illnesses that entitled the worker to weekly payments and were assessed as part of the SEP Review.
See: Period of notice | Ongoing eligibility determinations after interim determinations | Invite worker to make an impairment benefit claim | Transition Support Service | HelpConnect
130 week decisions that include an interim or administrative determination
3.3.4.5 Worker disputes ongoing eligibility determination
If a worker only disputes the WPI aspect of the ongoing eligibility determination, the Agent or Self-Insurer must refer medical questions to the Medical Panels within 14 days of being advised by the worker that they only dispute the WPI determination.
Primary psychiatric injury WPI disputes
For workers with primary (non-secondary) psychiatric injuries who dispute the WPI aspect of the ongoing eligibility determination, the Agent or self-insurer must:
-
refer medical questions to the Medical Panels within 14 days of being advised by the worker that they only dispute the WPI determination
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consider making a submission to Medical Panels when notified of the Medical Panel appointment date, utilising additional obtained information
-
review Medical Panel outcomes against submissions within 30 days from receipt.
Submissions for disputed primary psychiatric injuries claims must be approved by an authorised, suitably qualified person within their organisation, prior to sending to the Medical Panels.
A copy of the submissions must be provided to the worker or the worker's representative.
For Agents only, a copy should also be provided to the WorkSafe SER team.
If the worker disputes any other part of the ongoing eligibility determination (to cease or maintain weekly payments) or to multiple parts of the determination, a worker must refer their dispute to Internal Review or to WIC Workplace Injury Commission for conciliation. For example, if a worker disputes:
-
the list of injuries and/or illnesses (SOI)
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that one or more of their injuries has stabilised
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the decision on capacity for work
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any of the above AND the WPI assessment.
After conciliation, there are various dispute paths available.
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There can be a referral to the Medical Panels from conciliation for any and all medical questions including WPI. Stability is not a medical question capable of referral to the Medical Panel. If stability is in dispute, the question to be referred, is the worker’s WPI. In answering the WPI question, Medical Panels will provide an opinion on stability.
-
All disputes except WPI can be referred to arbitration.
-
All disputes can be challenged in the Magistrates’ Court or the County Court. Where one of the disputes is WPI, the court will refer that to the Medical Panels along with any other medical questions it considers appropriate.
See: Dispute Resolution | Dispute Pathways for SEP determinations
3.3.4.6 Ongoing eligibility determinations after interim determinations
An interim determination is not a final determination. It continues to operate until the Agent or Self-Insurer makes either a further interim determination, or a final determination.
The Agent or Self-Insurer must revisit the interim determination (regardless of the outcome of the interim determination) when an assessment of the worker’s WPI can be undertaken (for example, when a worker has attained age 18 or when a worker’s injuries have stabilised).
At the appropriate time, the Agent or Self-Insurer must:
-
arrange an impairment assessment with an IIA or where appropriate, make an administrative determination of the WPI
-
undertake a capacity assessment, if required
-
make an ongoing eligibility determination.
See: Impairment assessment for SEP Review | Capacity assessment for SEP Review | Two year review
The Agent or self-insurer must notify the worker in writing of the ongoing eligibility determination regardless of whether it affirms or modifies the interim determination.
See: Period of notice
No interest is payable on any weekly payments that are in arrears where a final determination amends an interim decision to reinstate payments.
3.3.4.7 Invite worker to make an impairment benefit claim
Where the worker’s WPI has been assessed by an IIA or administratively determined by an agent or Self-Insurer, and the WPI meets the threshold for an impairment benefit (IB) claim, the Agent or Self-Insurer must invite the worker to make an IB claim.
Where WPI has been assessed by an IIA, the worker has qualified for an IB, subject to meeting the relevant WPI threshold for IB entitlement.
Where there has been an administrative determination, an IIA will have to be arranged if the worker makes an IB claim. An administrative determination will only be an indicator of an IB entitlement.
| Impairment | WPI threshold for IB entitlement |
|---|---|
|
Musculoskeletal physical impairment |
5% or greater |
| Other physical impairments | 10% or greater |
| Psychiatric impairment (not secondary to physical injury) | 30% or greater |
Interim determinations will not receive an invitation to make an IB claim because it has been determined that an impairment assessment is not possible.
Where there are multiple WPI assessments because the worker’s weekly payments claim relates to injuries arising from multiple events or circumstances, the worker should be invited to make an IB claim for each event or circumstance (where the WPI threshold has been met).
See: Impairment Benefits | IB compensation tables
Worker advised of entitlement
When the Agent has made a determination of whether the worker will have an entitlement to weekly payments once the second entitlement period has ended the Agent must send a notice to the worker and employer.
3.3.4.8 Dispute pathways for SEP determinations
Note: If a worker’s degree of impairment has been finally determined by a Medical Panel (either in SEP or IB), that determination is final and binding in respect to the injuries that were assessed by the Panel and cannot be disputed: see section 53A. If there are additional compensable injuries that have not been assessed by a Medical Panel, these additional injuries can be disputed and referred to the Medical Panel.
| Type of Adverse SEP Determination | Issue(s) in dispute | Dispute Pathways Available |
|---|---|---|
|
Ongoing eligibility determination based on an independent impairment assessment (IIA) Ongoing eligibility determination to terminate weekly payments based on WPI% derived from an IIA and/or the worker’s capacity. Note: If an ongoing eligibility determination is made on only one ground (WPI or capacity), which is ultimately overturned by the Medical Panel, weekly payments should be reinstated until the other ground is assessed and determined.** |
The only issue in dispute is capacity |
No change to current practice. The worker can lodge a request for conciliation and if agreement is not reached at conciliation, WIC can:
|
| The only issue in dispute is the WPI% assessment* | Section 167H requires the Agent to make a referral directly to the Medical Panel. Agent must advise worker within 60 days of obtaining the Medical Panel Opinion (MPO) of the opinion and entitlement, if any, to weekly payments after the SEP. In the event that the Medical Panel finds the injury unstable and will not assess WPI, the SEP termination remains effective, and the matter should be referred back to the Medical Panel once the worker’s injury has stabilised. | |
| The issues in dispute are capacity and WPI% assessment |
The worker can lodge a request for conciliation and if agreement is not reached at conciliation, WIC can:
|
|
| The issues in dispute include the statement of injuries (SOI) |
Where agreement is not reached at conciliation, WIC can:
|
|
|
Ongoing eligibility determination based on an administrative determination under s167C Determination that it is not necessary or practicable for the worker to be assessed by an IIA for the purposes of an impairment determination. This decision may be made if satisfied of any of the following:
Note: If an administrative determination is made on only one ground (WPI or capacity), which is ultimately overturned by the Medical Panel, weekly payments should be reinstated until the other ground is assessed and determined.** |
The only issue in dispute is capacity |
No change to current practice. The worker can lodge a request for conciliation and if agreement is not reached at conciliation, WIC can:
|
| The only issue in dispute is the impairment threshold determination (no reasonable prospect of WPI more than 20%)* |
Because an administrative determination is an ongoing eligibility determination, section 167H requires the Agent to make a referral directly to the Medical Panel. If there are no practical barriers to having the worker undergo an assessment in accordance with Division 4 of Part 2, the Medical Panel can determine the WPI%. Agent must advise worker within 60 days of obtaining the MPO of the MPO and entitlement, if any, to weekly payments after the SEP. In the event that the Medical Panel finds the injury unstable and will not assess WPI, the SEP termination remains effective, and the matter should be referred back to the Medical Panel once the worker’s injury has stabilised. |
|
| The issues in dispute are capacity and WPI% threshold determination (no reasonable prospect of having a WPI of more than 20%) |
The worker can lodge a request for conciliation and if agreement is not reached at conciliation, WIC can:
|
|
| The issues in dispute include the statement of injuries (SOI) |
Where agreement is not reached at conciliation, WIC can:
|
|
|
Interim determination under s167D Interim determination that the worker is not eligible to receive weekly payments after the expiry of the second entitlement period in respect of one or more compensable injuries. An interim determination may be made if an impairment determination cannot be made because:
An interim determination to cease weekly payments can only be made where satisfied of any of the following:
It is intended that an interim determination will remain in place until impairment can be assessed, at which time an IIA will be arranged and an ongoing eligibility determination will follow. Note: If an interim determination is made on only one ground (WPI), which is ultimately overturned by the Medical Panel, weekly payments should be reinstated until the other ground is assessed and determined.** |
The only issue in dispute is the impairment threshold determination (if able to be assessed, WPI would likely be 20% or less) |
Interim determinations cannot be referred by the Agent directly to the Medical Panel as s167H limits such referrals to ongoing eligibility determinations. In these circumstances, the worker can refer the dispute to WIC who can refer the WPI question (WPI%) to the Medical Panel. In answering the medical question regarding WPI, the Medical Panel will also address stability. If the Medical Panel finds the injury stable and determines WPI%, this opinion will be final and binding. The Agent should issue an ongoing eligibility determination that aligns with the MPO. If the Medical Panel finds the injury unstable and WPI cannot be assessed, the interim termination stands and the Agent should request WIC issue a GD certificate. The worker can dispute the interim determination at Court or wait until their injury stabilises and the Agent makes a further SEP determination. |
| The issues in dispute are whether the worker’s injury has stabilised and the impairment threshold determination (if able to be assessed, WPI would likely be 20% or less) |
As above, interim determinations cannot be referred by the Agent directly to the Medical Panel. The worker can lodge a request for conciliation, and if agreement is not reached at conciliation, WIC can refer the WPI question (WPI%) to the Medical Panel. In answering the medical question regarding WPI, the Medical Panel will also address stability. If the Medical Panel finds the injury stable and determines WPI%, this opinion will be final and binding. The Agent should issue an ongoing eligibility determination that aligns with the MPO. If the Medical Panel finds the injury unstable and WPI cannot be assessed, the interim termination stands and the Agent should request WIC issue a GD certificate. The worker can then dispute the interim determination at Court or wait until their injury stabilises and the Agent makes a further SEP determination. |
|
| The issues in dispute include the statement of injuries (SOI) |
Where agreement is not reached at conciliation, WIC can:
|
Note: Before referring an SEP dispute to the Medical Panel, Agents must obtain a written request from the worker asking for the referral and confirming that they are disputing WPI only. If a worker is unsure which issues they want to dispute, they should lodge a request for conciliation at WIC.
**Note: Only those issues determined in the notice should be referred to the Medical Panel. For example, if the determination is made on WPI grounds only, WIC should not refer a capacity question to the Medical Panel, as there is no dispute regarding capacity. Should a Medical Panel ultimately determine an impairment of more than 20%, the termination notice will be overturned and weekly payments re-commenced until a further notice on capacity grounds can occur. Should the Medical Panel determine 20% or less impairment, the termination notice stands and there is no need to assess capacity.
3.3.4.9 Unstable Medical Panel opinions
This section relates to a scenario where the Agent has issued a SEP termination on WPI grounds, and this medical question (WPI%) has been referred to the Medical Panel. If the worker’s injury is unstable at the time of its assessment, the Medical Panel may provide an opinion that the worker’s injury is unstable, and as a result, the Panel is unable to determine the worker’s degree of impairment (WPI%).
In these circumstances, the SEP determination stands (the worker is not entitled to weekly payments after the SEP), as the SEP termination remains unaffected by the Medical Panel’s opinion on stability. The Medical Panel has not provided an opinion on WPI%, and therefore this question remains unresolved. Only a MPO assessing a worker’s WPI of more than 20% (assuming worker also NCI) would result in an entitlement to weekly payments after the expiry of the SEP.
The dispute pathway available to a worker following a Medical Panel unstable opinion will depend on the type of SEP determination.
Interim determinations
This dispute should have proceeded through WIC, with WIC referring the medical question (WPI%) to the Medical Panel. In circumstances where the Medical Panel finds the worker’s injury unstable and does not determine WPI%, the Agent can request a Genuine Dispute A genuine dispute is one in which the parties cannot reach an agreement but the conciliation officer considers the dispute is genuine. (GD) certificate.
The worker should be advised that the interim termination is still effective, and they are not eligible to receive weekly payments after the expiry of the SEP. They should be informed that the Agent will re-assess their WPI and entitlement to weekly payments (if any) once their injury has stabilised. See further guidance in section 3.3.4.2 regarding periodic reviews of interim determinations.
Once a GD is issued, the worker can commence proceedings in Court, and the Court could proceed to affirm, vary or set aside the interim termination. Of course, the Agent should still proactively review the interim determination upon confirmation of stability, to determine whether a further interim determination or ongoing eligibility determination can be made, to minimise unnecessary litigation.
Ongoing eligibility determinations (either via IIA or administrative determination)
Where the worker was only disputing WPI, this dispute should have proceeded via direct referral from the Agent to the Medical Panel: s167H. Under s167H(3) the Agent will be required to notify the worker within 60 days of the MPO of:
-
The opinion of the Medical Panel (who have provided an opinion on stability only and not determined WPI%); and
-
That the worker has no ongoing entitlement to weekly payments after the expiry of SEP, as the SEP termination remains unaffected by the Medical Panel’s opinion on stability.
The Agent should provide a Medical Panel outcome letter to the worker advising of the above, and that their WPI dispute can be referred back to the Medical Panel for assessment of WPI once their injuries have stabilised. The timeframe for re-assessment by the Medical Panel will be dependent on the worker reaching stability, though should be no later than 12 months from the date of the Medical Panel assessment.
WorkSafe recommends the following periodic reviews of stability based on the information on file and case management plan as a minimum:
-
once every 3 months following surgical intervention
-
once every 2 months for further medical treatment (non-surgical)
-
once every month for asthma or mental injury
If less time is anticipated for stabilisation, Agents should review the claim more regularly, as deemed appropriate on a case by case basis.
Whether the Agent should obtain a further IIA prior to re-assessment by the Medical Panel will depend on the individual facts of the claim. The following can be used as general guidance only:
-
If there are medical reports confirming stability with no apparent change to the WPI (i.e. no surgery or change in treatments), the WPI dispute can be referred to the Medical Panel for re-assessment without obtaining a further IIA. If the worker has had surgery, or a substantial change in the WPI appears likely (i.e. significant deterioration), the Agent should obtain a further IIA prior to referring the matter to the Medical Panel for re-assessment.