The legislation provides that a worker can only make one IB Impairment Benefits claim for injuries arising out of the same event or circumstance. Specific timeframes exist in which an IB claim is to be processed.
There are limited circumstances where a claim can be withdrawn with a right to resubmit or make a new claim:
- a worker may make a written request to the Agent to withdraw their claim if their claim was made before 18 November 2004 and they have not attended any impairment examination
- if a worker withdraws a claim they may submit a new claim as if it were the first claim of that type that the worker were submitting in respect of that injury.
The Act does not otherwise specifically state that a worker can withdraw or cancel an IB application.
However, WorkSafe’s position is that a claim is ‘made’ when a claim that complies with the statutory requirements as to form and content is given or served on the employer or directly lodged with WorkSafe or the Agent.
The legislation mandates the times in which further steps must be taken and provides a mandatory timetable by which a claim, once ‘made’, is to be considered and determined. Except in limited circumstances, WorkSafe’s position is that it is not possible for a worker to withdraw an IB claim.
WorkSafe’s position is that unless in the limited circumstances described above, Agents are not to allow a worker to withdraw or cancel their claim for impairment benefits. If the worker is not able to proceed with their claim, the consideration should be given to suspending the claim within 90 days of receipt. In other limited circumstances, consideration should be given to Agents holding the claim in abeyance.
Workers affected by this policy
Workers affected by this policy are those who have made an IB application that complies with the statutory requirements of the legislation and in certain circumstances directly lodge their claim.
If a worker or their legal representative requests to withdraw, cancel or hold a claim in abeyance, the Agent must protect the worker’s right to their one claim for impairment benefits and should consider the following (non-exhaustive) actions:
- ascertain the reason/s why the worker no longer wishes to pursue their claim and determine the best course of action for the worker. For example, provide assisted transport to Independent Impairment Assessments (IIA Independent impairment assessment’s) or consider a ‘desk top’ assessment. Attempts to contact the worker should be documented on the claim file and ACCtion.
- ensure that the worker is aware of their legal rights in line with the legislation. The worker must be aware that they cannot make more than one IB claim for injuries arising out of the same event or circumstance.
- if the worker has a concurrent common law claim, the Agent should follow up the progress of the common law claim with the worker’s legal representative or WorkSafe’s Legal Panel solicitor WorkSafe’s External Investigation Management Unit to ascertain whether the common law claim has resolved. If the common law claim is rejected, not pursued or unsuccessful, the worker may still have an entitlement to impairment benefits. The Agent should determine the status of the common law claim before seeking resolution of the IB claim from WorkSafe in line with this policy. In such circumstances, please refer to the Operational Policy ‘Concurrent IB claim and serious injury application’ following the commencement of the Transport Accident Transport accident means a transport accident within the meaning of section 3(1) of the Transport Accident Act 1986 and Accident Compensation Legislation Amendment Act 2010.
- consider whether the worker can be considered inactive in line with the Inactive Claim Policy.
- consider whether the claim can be suspended in line with the Suspension Policy.
- if WorkSafe approves a request for a claim to be considered in line with the Withdrawn, Cancelled or Held in Abeyance Policy, the Agent should advise the worker in writing that their claim for impairment benefits will be held in abeyance indefinitely and if not previously advised, refer to the legislation. The Agent must also advise the worker that if they wish to resume their claim for impairment benefits, they must advise the Agent in writing of their intention.
- upon receipt of a new IB claim form or other correspondence requesting the claim to be progressed, the Agent must attempt to identify whether the worker has made a previous IB application before registering a new claim.
WorkSafe will keep a register of claims resolved in line with this policy.
WorkSafe recommends that Agents conduct periodic reviews of the information on file (including the primary claim file) to establish if at any point the IB claim needs to be reactivated or to identify that circumstances may have changed and a further contact with the worker should be made.
Worker request to reinstate their claim
If a claim has been withdrawn, cancelled or held in abeyance in line with this policy and at a later date, the worker requests to resume their claim, the Agent must contact WorkSafe and advise that the worker has requested to pursue their IB claim. The worker does not have to submit a new IB claim form for injuries arising from the same circumstance. The claim should be processed using the original claim form and a new claim should not be raised.