The decision to accept or reject liability on a WorkCover claim is one of the most critical events in the claim’s timeline. The injured worker’s livelihood, the employer’s premium and all the circumstances that may follow hinge on this determination. But despite the gravity of the potential outcome, the decision-making process is actually quite simple.
When a worker hands in a WorkCover claim form in Victoria, it must be forwarded to your WorkSafe agent within 10 calendar days. Your agent will either accept the claim outright or classify it as ‘pending’ for up to 28 days, in which time they can gather information and decide whether to accept or reject the claim. This is your one chance to dispute initial liability. However, you should only do this if there is a valid reason to reject the claim and a reasonable probability you will succeed.
The liability process is not there to make you feel good about inconveniencing the worker. If you can see that the claim will ultimately be accepted, refrain from disputing it. You shouldn’t argue over liability because you wish it hadn’t happened. The investigation process and the delay that comes with it can harm the chances of a successful return to work (RTW) down the track. I see too many employers shut down their relationship with the worker during the pending claim period. There is no contact between the two, and no planning for RTW. Four weeks go down the drain.
You certainly shouldn’t roll over and accept all claims, but neither should you waste everyone’s time. In fact, if you regularly need to investigate claims, this may signal a failure in your systems or a poor culture. Do you feel that some of those injuries are fraudulent or frivolous? How did that person get hired in the first place? Why wasn’t the injury prevented? Are there unaddressed performance issues?
Each WorkSafe agent has an eligibility team whose primary function is to assess all new claims, and they will contact you to discuss liability. If the eligibility team accepts a claim, a case manager takes over to manage ongoing entitlements and RTW. In the wake of any investigation, the eligibility officer should share their findings with you, as well as the basis of their decision, which they will then issue in writing. Should the worker go on to appeal the rejection of a claim, a dispute resolution team will handle it.
From your perspective, the conditions that need to be met for a claim to be accepted are as follows:
- Is there a diagnosable injury?
- Does the worker allege there was an event at work that caused this injury?
- Did the event actually occur?
- Is it possible this event could have led to the claimed injury?
If the agent is able to answer ‘Yes’ to all these questions, it’s likely the claim will be accepted.
Now let’s break down these questions into more detail. Understanding these conditions will help you decide whether it makes sense to dispute a claim.
1. Is there a diagnosable injury?
The worker’s claim form should describe the injuries that were sustained. If the worker attended a medical practitioner, they may also have a certificate of capacity with a diagnosis on it. A diagnosis is something like a fracture, a laceration, a soft tissue injury, anxiety or depression. Be aware that ‘pain’ is not a diagnosis. It’s a symptom. I’ve seen certificates with a diagnosis that reads ‘painful left shoulder’. Just to be clear, a torn ligament in the shoulder is a diagnosis, and that torn ligament could have symptoms of pain or soreness.
Similarly, ‘stress’ is not a diagnosis either. Rather, it’s an event that could lead to a diagnosable mental health injury such as anxiety or depression. It’s a bit like how falling off a ladder is an event that could lead to a diagnosable physical injury. Your work could be very demanding, exposing you to stress (the event), and you develop anxiety (the diagnosis).
Your WorkSafe agent will need to take steps to verify if there is a diagnosable injury. They may request a questionnaire or medical report from the treating healthcare practitioner (THP), and they will likely arrange an independent medical examination. A worker can’t just decide on a diagnosis – it should be validated by the THP and confirmed or disputed by a medical examination.
Independent medical examiners are the WorkSafe-approved medical professionals engaged to provide medico-legal reports. Their purpose is not to provide treatment. At this stage of the claim, they are simply asked to offer an opinion on the worker’s diagnosis, prognosis, capacity for work, and the possible work-relatedness of the injury.
It’s not easy to trick a doctor into believing you have a medical condition when you don’t, but I can’t say it’s impossible. Independent medical examiners, however, have many methods for assessing a diagnosis. It’s not as simple as a worker telling a psychiatrist they are depressed and expecting the examiner to agree with them. The worker must exhibit or describe specific symptoms that come with the diagnosis.
One of the reasons why a lot of claims are accepted – although it unfortunately allows some workers to successfully fake an injury – is that the threshold for what is regarded as an injury is quite low. Let’s say that a worker has had no pain in the past but they now experience some pain symptoms. Even if they’re not excruciating, those symptoms wouldn’t be there if it weren’t for the work injury. The pain doesn’t need to be extreme to be work-related – it just needs to be present. You may consider a minor injury as frivolous, but if it can be identified by a medical professional, it can be accepted as part of a claim.
If a worker has a diagnosable injury, they have passed through the first filter in getting their claim accepted.
2. Does the worker allege there was an event at work that caused this injury?
This is the area that causes the most frustration for some employers, particularly when the worker says something like, ‘It just happened over the years’. But the fact is that an injury doesn’t have to stem from one specific event at a single point in time. I often see claims accepted for injuries that have happened over time or are due to ‘wear and tear’. If a worker has performed physically demanding work for some years – sometimes only for a few weeks – it’s going to be hard to prove that the injury was not caused by their employment.
Regardless, to get a claim accepted, what the worker says caused their injury needs to be established. They may say something like:
- ‘I heard a crack when I lifted something heavy.’
- ‘I slipped on a wet surface and fell.’
- ‘The work is repetitive and heavy. I noticed my soreness getting worse over time.’
- ‘A co-worker yelled at me and humiliated me in front of the other workers.’
By the time someone lodges a WorkCover claim, they usually will have given considerable thought to how their injury was work-related. It’s rare that you’ll receive a claim form that doesn’t allege an event at work.
If you have a worker with a diagnosis who describes an event at work as the cause, they have passed through the second filter.
3. Did the event actually occur?
This is where the facts really come into play, presenting one of your most significant opportunities to dispute a claim. Your WorkSafe agent may arrange a circumstance investigation, where a private investigator will establish the timeline of events and the facts of the matter. They will take witness statements, examine employee records and gather other forms of evidence to establish a factual version of events.
If you have evidence that the worker sustained their injury outside of work, or that their description of the event is otherwise not accurate, this is the time to raise it. For instance, some injured workers have claimed to be in a specific location at a particular time, but video footage has disproved this claim. Or an injured worker may have recounted several different versions of events between when they notified you of the injury and when they lodged the claim. If witness statements reveal that the worker has potentially fabricated their story to get a claim accepted, the factual basis of the claim will be weakened.
When it comes to factual inconsistencies, claims can be rejected on the basis that ‘the injury did not occur in the manner alleged’, but the burden of proof will be on you. So remember that no matter how unlikely or frustrating a claim is, liability decisions will rely on evidence, not opinions.
If your worker has a diagnosis they say stems from an event that occurred at work, and you can’t disprove them, they have passed through filter number three.
4. Is it possible this event could have led to the claimed injury?
Pay close attention to the use of the word ‘possible’ here. The injured worker doesn’t need to establish that it was definite that the event they described caused the injury, only that it was possible. The problem is, pretty much anything is ‘possible’. To block a claim at this final step, you must have a compelling case that work was not a significant contributing factor in the injury. Or to put it another way, could a reasonable person conclude that the employment’s contribution to the injury was insignificant?
It is not easy for a worker to lodge a claim and breeze through the liability process, and it is not an enjoyable experience either. But when it gets to this point, the odds are in the worker’s favour that the claim will be accepted. So you will need to work hard from the beginning to build your case if you intend to dispute a claim.
Dispute claims when you must, but first ask yourself why people are lodging claims. What more can you do to prevent injuries or to collaborate on health and wellbeing issues? And what does your history say about the culture of your business and how this relates to WorkCover?
If you’ve received a WorkCover claim and have concerns regarding liability, you should contact our office immediately for a free consultation to review your options.
About Mark Stipic Consulting
Mark Stipic Consulting are trusted advisors to decision-makers at employers, helping them achieve the goals of reduced injuries, claims and premiums. Mark Stipic is #TheWorkCoverGuy and author of WorkCover that Works, the only book of its kind written specifically to help employers reduce their injuries, claims and WorkCover premiums.
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