Termination of workers compensation claims Tasmania due to whole or substantial recovery

Tasmanian workers facing termination of their worker's compensation weekly payments on the basis that they have “wholly and substantially recovered” from their work-related injury or illness have significant rights under the law – but strict time limits apply.

Worker’s compensation claims process in Tasmania

When a worker makes a claim for worker’s compensation due to a workplace injury or illness, the employer (or insurer) will make a decision about whether to accept or dispute the claim within 84 days.

For information regarding disputed claims, read our earlier blog, “What to do if your Tasmanian worker’s compensation claim is disputed?”

If a claim is accepted, an employer or insurer will generally meet the costs of the claim, including:

• weekly payments for any period of incapacity;
• medical expenses related to treatment for the injury; and
• travel cost and associated expenses.

You can read more about the all the benefits and the claim’s process in our earlier blog, “WorkCover Tasmania - your plain English guide to workers compensation”.

Terminating worker's compensation benefits once the claim is accepted

Even after a worker's compensation claim is accepted, employers retain the right to terminate weekly payments on the basis that a worker has “wholly or substantially” recovered. You will have a right to seek a review of this decision, but strict time limits apply.

GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114

Terminating worker's compensation benefits due to “Wholly or substantially recovered”

Under section 86 of the Workers Rehabilitation and Compensation Act, an employer can terminate a worker who they believe has “wholly or substantially recovered”, however the employer needs to take certain steps to ensure that the termination is valid. These are:

1. The employer must arrange for a medical practitioner to examine the worker. This can be any medical practitioner, but commonly an “Independent Medical Examiner” will assess the worker;
2. The medical practitioner must then certify that the worker has “wholly or substantially recovered” from the injury and set out the reasons why they have reached that conclusion;
3. The employer must then give the worker a notice which:
4. states that the worker’s payments will be terminated within 10 days of the date that the notice was given to the worker;
5. provides a copy of the certificate which states that the worker is “wholly or substantially recovered”;

• informs the worker that they have a right to refer that termination to the Tribunal for determination.

This termination is often referred to by employers and insurers as an "86(3) termination”, and will always be accompanied by a “section 86(1)(c) certificate” signed by a doctor.

An employer who terminates a worker’s payments without complying with this section can be prosecuted and fined.

Strict time limits apply to appeal a termination of weekly payments

A worker whose payments have been terminated on the basis of a whole or substantial recovery has significant review rights (rights to appeal the decision).

However, it is important that any worker take action promptly. A referral must be made to the Tasmanian Civil and Administrative Tribunal within 60 days of weekly payments being ceased.

The best way to do this is with the assistance of a lawyer.

GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114

Additional entitlements: lump sum claims for whole-person impairment

Further medical evidence from Independent Medical Examiners is particularly important where a worker has an entitlement to a “whole person impairment payment” (a lump sum payment) under section 71 of the Act.

This is a payment for a permanent injury (physical or psychological) which can be assessed and determined by an accredited doctor. Generally speaking, under Tasmanian law, a worker with an injury which is assessed as carrying a whole-person impairment of 5% for a physical injury or 10% for a psychiatric injury will be entitled to a lump sum payment in addition to weekly payments and medical benefits.

A worker with a whole-person impairment assessed at 15% or more may be entitled to further benefits, including an extended period of worker's compensation weekly payments and medical benefits.

A worker with a whole-person impairment assessed at 20% or more may be entitled to further entitlements again, including the right to make a claim for common law damages against their employer.

Even if a worker is determined to be wholly or substantially recovered, they may still have a compensable entitlement to lump sum compensation by virtue of a whole-person impairment.

Get help from a Tasmanian workers compensation lawyer

Any worker who is served with a notice terminating their payments on the basis that they have “wholly and substantially recovered” should seek legal advice early. Where reliable medical evidence can be found that a worker’s incapacity is ongoing, significant entitlements can flow, even after the termination.

However, it is important that workers get advice quickly – a referral needs to be made within sixty days of the date of termination of payments to ensure that any referral has the best prospects of success. Our Tasmanian worker's compensation lawyers can assist you with any issues you are having with your claim, including termination of benefits due to whole or substantial recovery.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au