2.7.3 Compliance

2.7.3.1 Refuse to attend or obstruction of independent medical examination | 2.7.3.2 Reasonable & unreasonable non-attendance | 2.7.3.3 Suspending a claim for not attending an independent medical examination | 2.7.3.4 Period of suspension | 2.7.3.5 Fees payable for cancellation

A worker’s entitlement to compensation may be suspended if he or she unreasonably refuses to attend or unreasonably obstructs an independent medical examination.
The Agent must obtain the worker’s explanation for not attend the independent medical examination before deciding whether the worker has unreasonably refused to attend.

2.7.3.1 Refuse to attend or obstruction of independent medical examination

Unreasonable obstruction of an independent medical examination may consist of:

refusal to answer questions posed by the IME Independent Medical Examiner / Independent Medical Examination
refusal to cooperate with the physical examination
knowingly providing misleading or false information to the IME
refusing to provide test results previously undertaken which may be relevant to a diagnosis being made.

Worker unreasonably refuses to have or obstructs an independent medical examination

Where all attempts to ensure a worker’s attendance at an independent medical examination have been made (and documented) and a worker unreasonably refuses to have or unreasonably obstructs an independent medical examination, the Agent can suspend:

any claim or proceedings by or on behalf of the worker
the worker’s entitlement to compensation under the legislation, eg weekly payments, medical and like expenses, impairment benefits and
the worker’s entitlement to apply to the County Court or Magistrates’ Court.

Note: If unsure about the circumstances of a worker’s non-attendance seek advice from the Team Manager, suitably qualified person (technical), suitably qualified person (injury management) or Medical Advisor before suspending the claim.

If a worker obstructs an independent medical examination, only suspend the claim if the obstruction was unreasonable and fundamental in regard to the purpose of the examination.

For example refusal to answer isolated questions might not be grounds for suspension but refusal to answer all questions would be enough to warrant immediate suspension. Where this occurs immediately suspend the claim.

WIRC s27

Consequences of suspension for refusal to have or obstruction of an independent medical examination

Weekly payments which would otherwise be payable are forfeited during the period of suspension.

The suspension period remains in effect until the worker attends an independent medical examination.

The worker and employer must be advised in writing if a claim is suspended.

See: Altering, reducing or terminating weekly payments

Workers can appeal against suspension for non-attendance

The worker has the right to contest a decision to suspend their claim on the grounds of unreasonable obstruction of or refusal to have a medical examination.

See: Dispute resolution

Notice of suspension to the court

If there is current legal proceedings in place the Agent must notify the Panel Firm of any suspension so that they may consider providing notification to the relevant court of the date from which the suspension is effective and the date on which the suspension is lifted.

2.7.3.2 Reasonable & unreasonable non-attendance

In the event the worker does not attend the independent medical examination, the Agent needs to determine whether the reasons provided are considered reasonable.

Unreasonable non-attendance

Examples of unreasonable non–attendance may include the inability to:

organise family commitments (when enough notice of the appointment has been given) or
arrange suitable transport when enough notice of the appointment has been given.

Reasonable non-attendance

Examples of reasonable non-attendance by the worker may include:

hospitalisation – an independent medical examination should not be arranged at or about the time of hospitalisation
family reasons – a death or serious illness / injury in the worker’s immediate family
illness – if a worker has cancelled previous independent medical examinations due to illness, seek medical evidence
transport problems - severe transport disruption or strike may be acceptable in some cases
insufficient notice or notification not received, eg where a change of address is not notified to an Agent, there is a postal strike or mail is stolen from a letter box
medical instructions, eg the worker’s THP Treating Health Practitioner may advise them not to attend for medical reasons. Contact the THP and requested to confirm their advice in writing. Make alternate arrangements if necessary, to have the worker examined.

Note: The Agent must make all reasonable efforts to help the worker to attend the independent medical examination. Demonstrating that you have provided the maximum assistance to a worker to attend can help (if needs be) in demonstrating that a worker’s non-attendance was unreasonable.

2.7.3.3 Suspending a claim for not attending an independent medical examination

The worker is required to attend and within reason, not obstruct the medical examination.

IME advises worker

The IME is required to advise the Agent immediately if the worker:

fails to attend the arranged medical examination or
obstructs the medical examination.

Agent to determine reason for non-compliance

Ask the worker to:

explain why they did not comply with the request and keep notes on the file and
confirm their reasons in writing.

At the same time a further independent medical examination is to be arranged.

When a suspension is to be imposed

If a claim is to be suspended, update the file and send the standard letters advising the worker:

the date of suspension of compensation and appeal rights
to contact the Agent if there is a valid reason for non-attendance and
that he or she has the right to appeal against the suspension.

The letter to the employer advises the effective date of the suspension and requests that payments not be made beyond that date.

See: Terminate or alter weekly payments

Agent to lift suspension

If the worker attends the second or subsequent medical examination the Agent must lift the suspension from the date of the attendance.

2.7.3.4 Period of suspension

The period between:

the date on which a worker unreasonably refused to have or unreasonably obstructed a medical examination and
the date when the examination takes place

must be taken into account in calculating a period of time under the legislation.

WIRC s27

Non-attendance or obstruction of exam during initial liability pending period

WorkSafe requires Agents to make a determination on whether to accept or reject a claim within 28 days of receipt regardless of whether a worker fails to attend an independent medical examination arranged during that period.

Claims can be suspended on the basis of a worker's unreasonable refusal to attend or obstruction of an independent medical examination before the Agent has decided whether to accept or reject the claim however a decision to accept or reject the claim is still required within 28 days of receipt of the claim

2.7.3.5 Fees payable for cancellation

IME cancellation

Agents are required to assess and verify liability for cancellation fees incurred by non-attendance, with the Agent liable for non-attendance fees incurred due to Agent fault.

Agents will be liable for cancellation fees incurred by non-attendance that are deemed to be Agent fault.

Agents should follow the Erroneous Payment process for the IME Cancellation fees that are deemed as Agent fault.

See: Erroneous payments

Identify, verify and pay IME cancellation

These are the steps to identify, verify and pay IME cancellations.

By	Action
Agent	Submit their IME Cancellations reporting, as required with their Agent Quarterly Report
WorkSafe	Will review report in line with internal WorkSafe reporting. This review will include reconciling the data on the Agent report with WorkSafe’s report to confirm that the information provided by Agents appropriately identifies liability for cancellation fees: if there is a discrepancy between the reports, the Agent will be contacted to review reporting and to review the additional payments not previously reported for assessment of Agent liability. A sample of payments identified by the Agent as Scheme liability will be reviewed to ensure liability has been appropriately assessed by the Agent. If there are notable differences a larger sample will be reviewed. The Claims Audit System (CAS) will be used to undertake reviews
WorkSafe	Will notify Agents of: the payments identified where the liability may not have been appropriately assessed any additional payments not reported on for Agent review of liability. A questionnaire via CAS will be forwarded identifying payments that require review
Agent	Required to complete a review of Work Safe's findings and provide a response as to whether they agree or do not agree with the findings. Where the Agent does not agree, the response should include any additional information to support that the cancellation payment is not 'Agent Fault' . The Agent's response is to be submitted within 5 working days. The Agent response is to be submitted by completion of the CAS questionnaire
WorkSafe	WorkSafe will within 10 working days of receiving the Agents’ response: complete a final review of the IME cancellation/non-attendance feedback taking into account any additional information provided for consideration forward to Agents the final list of payments deemed to be 'Agent Fault', along with the amount to be paid back to the Scheme.
Agent	Agents are to have processed the recovery payment and updated Action and Erroneous payments register within 10 working days of receiving the confirmed payment amount

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