You have suffered an injury at work in NSW, lodged your worker's compensation claim and Certificate of Capacity with the insurer, and you've been advised the claim is denied. Understanding the reasons your worker's compensation claim is rejected will help you determine what your options are to appeal that decision and have it reviewed.

Insurer is required to notify you of the decision to deny your NSW worker's compensation claim

The insurer will issue what is known as a Section 78 Notice. This is named after Section 78 of the Workplace Injury Management and Workers Compensation Act 1988. This section requires the insurer to notify an injured worker if they are:

The insurer has 21 days to accept or decline your claim. They may also provisionally accept your claim while they undertake further investigation.

In some instances, the insurer will not actually include the wording "s78 Notice" in its correspondence to you. It may simply say "important information about your worker's compensation claim". Please ensure you read any correspondence from the insurer carefully.

Insurer is required to stipulate the reasons for denying your NSW worker's compensation claim

The s78 notice will outline the insurer's decision and the reasons why they have declined your worker's compensation claim or made another adverse decision related to your claim. It will also attach any documentation they are relying upon to decline your claim.

Under s.78, the insurer must include a copy of all documentation they have relied upon to come to their decision to decline your claim, together with reasons why liability has been declined.

Some reasons your worker's compensation claim may have been denied could be:

  • a lack of information provided to the insurer – for example, the Certificate of Capacity completed by your treating doctor may not contain adequate detail regarding your injury;
  • you suffer from a pre-existing condition that caused the injury or illness;
  • the injury did not arise during the course of your employment;
  • your employment was not a substantial contributing factor to your injury;
  • if you suffered a psychological injury, the insurer could determine that your injury was caused by the reasonable action of the employer, in which case compensation is not payable;
  • you may not be considered a "worker";
  • your employer does not agree with your description as to how or why your injury or illness occurred;
  • expenses claimed may not be considered reasonable, or treatment was not considered to be "reasonably necessary";
  • you failed to lodge a claim within six (6) months of your injury or accident. There is some degree of flexibility with this time limit, and it may be extended in some circumstances. In these cases, it is highly recommended you seek the expert advice of a lawyer.

Can I challenge a decision to deny my NSW worker's compensation claim?

If you have received a Section 78 Notice, this does not mean your right to claim compensation or your worker's compensation case is over. You may just need the assistance of our experienced legal team.

There are ways the insurer's decision can be challenged. You can:

  1. request an internal review of the decision from the insurer;
  2. contact the IRO (the Independent Review Office);
  3. make an application to the Personal Injury Commission (PIC) of NSW.

  1. Requesting an internal review by the worker's compensation insurer

At the end of the Section 78 Notice there will be a form with the title Review Form.

Using this form, you will be able to outline the reasons why you believe the insurer's decision should be different and it also gives you the opportunity to attach any information or evidence to support your application. If this form is not included in the Notice, ensure you contact the insurer and ask for it to be provided to you.

The insurer must respond to you, in writing, within fourteen (14) days of receiving the review request. The insurer will either decide to overturn or modify its original decision or maintain the decision to decline your claim.

Quite often, requesting an internal review from the insurer doesn't result in the decision being overturned or amended. Not only does the review process allow the insurer to address any inadequacies in the Section 78 notice, it also fritters away precious time when often the original Section 78 notice may be defective and more easily dealt with in the Personal Injury Commission.

  1. Contacting the Independent Review Office (IRO)

Any worker can contact the Independent Review Office (IRO), if they are not satisfied, at any stage, with decisions being made about their worker's compensation claim.

IRO is an independent statutory office with a number of roles, including helping to find solutions to disputes by contacting the insurer on your behalf.

When worker's compensation disputes cannot be resolved, IRO may advise you to seek advice from a lawyer under the Independent Legal Assistance and Review Service (ILARS). The lawyer will review your case and might make an application to IRO to see if funding is available to help resolve the dispute in the Personal Injury Commission.

  1. Making an application to the Personal Injury Commission (PIC) of NSW

If you do not want to seek an internal review directly with the insurer or you are not happy with the insurer's decision after the review process, you can lodge what is known as an "Application to Resolve a Dispute" at the Personal Injury Commission.

The Personal Injury Commission (or PIC) is a single, independent tribunal for injured people. It is not only for people claiming worker's compensation but also CTP insurance after a motor vehicle accident.

The Personal Injury Commission helps resolve worker's compensation disputes between injured workers and insurers/employers, including disputes related to:

  • weekly payments and compensation;
  • medical, hospital and related expenses;
  • permanent impairment compensation;
  • work capacity decisions;
  • compensation for domestic assistance (for example, help with gardening and housework).

How much will a worker's compensation lawyer cost me in NSW?

Nothing. That's right, not one cent.

When you use an IRO-approved lawyer, you are not required to pay any of that lawyer's legal costs or any disbursement costs (costs of third parties associated with your claim) as these are all paid through the Independent Legal Assistance and Review Service, and you lawyer will be paid directly by IRO for all costs and disbursements. Hall Payne's NSW worker's compensation team are IRO-approved lawyers.

As IRO-approved lawyers, we can:

  • assist with the completion of a response to the insurer's s.78 Notice;
  • obtain all necessary medical evidence to support your claim;
  • if required, attend the Personal Injury Commission teleconference with you;
  • ensure all requests for lost wages and payment of past and future medical treatment costs are made.

Get help from a worker's compensation lawyer in NSW

Being injured at work can be painful and stressful, not only for you but your loved ones as well, and while you can handle the dispute process on your own, it is best not to, and it is always best to seek professional assistance of a skilled worker's compensation lawyer who can fight for you to achieve the best outcome possible.

Our personal injury team consists of IRO-accredited lawyers who are here to guide and support you every step of the way. We are able to seek funding from IRO to challenge the insurer's decision in the Personal Injury Commission.

We will obtain all necessary medical and factual evidence to dispute the insurer's decision. This will include obtaining necessary clinical notes and medical records from any treating practitioners and hospitals you have consulted with or been admitted to in relation to your injury.

We will also arrange for you to attend what is called an independent medical examination with one of our accredited specialists for the purpose of obtaining a medico-legal report to support your claim. We will also prepare statements.

Once all our evidence is available to support your claim, we will file an Application in the Personal Injury Commission to have a Mediator appointed to hear and determine the dispute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.