2.7.3 Worker Compliance

2.7.3.1 Reasonable & unreasonable obstruction | 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 (not just weekly payments) may be suspended if they unreasonably refuse to attend or unreasonably obstructs an independent medical examination.
The Agent or self-insurer must obtain the worker’s explanation for not attending the independent medical examination before suspending compensation.

Note: If unsure about the circumstances of a worker’s non-attendance seek, advice from the Team Manager, suitably qualified person (technical manager The Technical Manager liaises with Case Managers, employers, workers and legal providers to support the management of a workers' compensation claim. or injury manager), or Medical Advisor before suspending the claim.

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 or self-insurer can suspend:

• any claim or proceedings by or on behalf of the worker

• the worker’s entitlement to compensation under the legislation, e.g. weekly payments, medical and like expenses, impairment benefits and

• the worker’s entitlement to apply to the County Court or Magistrates’ Court.

2.7.3.1 Reasonable & unreasonable obstruction

Unreasonable obstruction of an independent medical examination includes:

• 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.

If a worker unreasonably obstructs an independent medical examination, compensation should only be suspended if the obstruction fundamentally affects the quality and outcome of the examination. This will occur of the IME cannot form a meaningful opinion because the unreasonable obstruction created unreliable examination findings.

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.

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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, e.g. 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.

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2.7.3.3 Suspending a claim for not attending an independent 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 they 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

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

Although all compensation is suspended, only weekly payments which would otherwise be payable during the suspension period are forfeited.

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

Workers can appeal against suspension for non-attendance

The worker has the right to contest a decision to suspend their claim.

Notice of suspension to Panel Firm

If a legal proceeding is on foot at the time of the suspension, the agent or self-insurer must notify the Panel Firm of any suspension. If the suspension is relevant to the proceeding, the Panel Firm will notify the court.

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.

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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.

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 unreasonably fails to attend an independent medical examination arranged during that period or where the worker’s unreasonable obstruction of an independent medical examination has fundamentally affected the quality of the IME opinion.

Where an agent or self-insurer cannot confidently determine liability without an IME opinion or because the IME opinion has been fundamentally affected by the worker’s unreasonable obstruction, they should consider issuing a preliminary rejection decision. At the same time, the agent of self-insurer should issue a suspension decision based on the worker’s unreasonable conduct. This means that if liability is later accepted, any weekly payments otherwise payable during the suspension period will be forfeited.

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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.

Where non-attendance is due to agent or self-insurer error, they will be liable for cancellation fees.

Agents should follow the Erroneous Payment process for the IME Cancellation fees that are deemed as their 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
	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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