Claims management decision framework

The claims service model empowers the service provider teams to be responsible for claims decisions to improve efficiencies and ensure that icare has visibility of dispute resolution and cost management to result in fairer outcomes for injured workers and employers.

As part of the implementation of icare's service model, icare has developed a claims management decision framework to reflect the Workers Compensation Act 1987 (1987 Act) and Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

This framework outlines decision accountabilities for appointed claims service providers and icare as the nominal insurer. Claims service providers are responsible and accountable for the majority of decisions such as initial liability decisions on claims, and where icare has final approval, the decision is made in a consultative way. icare is accountable for complex decisions, high cost services, issue resolution, complaints and disputes.

This framework does not change the accountability of the claims service providers for the day-to-day contact with the customer, or from providing a clear explanation of any decision that is made.

The responsibility for key claims management decisions is set out in the framework below.

Claims services

The Claims Management Decision Framework applies to claims service providers appointed to manage claims on behalf of the Nominal Insurer only.

Claim portfolio management

Injury notification, triage and service segmentation

Management of the claim within the appropriate service segment

Claim liability decisions

Strategic case management, facilitation of recovery and return to work

Ongoing management of weekly benefits

Ongoing management of medical and like services

Management of lump sum entitlements

Referral for services

Escalation, complaints, dispute and litigation management


Claim portfolio management: a single point of escalation

Responsible for delivery: Claims Service Provider

The Claims Service Provider gives large employers access to a single point of escalation and oversight across their entire claims portfolio. This point of escalation may be a dedicated role, such as a Client Services or Account Manager or may be combined with another role such as a Claims Team Leader.

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Claims reviews

Responsible for delivery: Claims Service Provider

Claims reviews are an opportunity to review the entire claims portfolio or part of the claims portfolio with the policy holder and/or their authorised representative.

Claims reviews do not take the place of regular communication with you on individual claims nor do they replace the responsibility of the Claims Service Provider to develop a claim strategy (as required throughout the life of a claim) and to keep all relevant parties informed.

You can request claims reviews up to four times per year at regular intervals (quarterly). The Claims Service Provider is responsible for coordinating the claims review.

You or the Claims Service Provider may request that icare personnel attend the claims review if relevant (for example a member of the litigation team may be present if a particularly complex legal matter is to be reviewed). Two weeks' notice is requested for icare to attend a claims review to ensure availability and proper preparation.

Claims reviews may occur face-to-face or via teleconference.

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Claims portal

The claims portal is an online tool developed by icare that allows workers, employers and third-party representatives to lodge a claim and complete tasks related to the management of claims.

Responsible for delivery: icare

The level of access available to a user will depend on whether they are authenticated or unauthenticated.

The unauthenticated claims portal is used by workers, employers, third-party representatives and claims advisors/case management specialists to lodge a claim, including the ability to upload relevant documents.

The authenticated claims portal allows registered employers and workers to:

  • Lodge a claim (mainly employers, employer representatives and, less frequently, workers)
  • Add, update and view certain claim details
  • Upload documents such as Certificates of Capacity, medical reports and other general claims information
  • Submit requests such as wage reimbursements.

Employer access to the icare authenticated portal is available for employers who have claims managed on the icare Claims IT Platform. Employers can speak to their Client Service point of contact to request registration for the Authenticated Portal.

icare is gradually migrating all claims to the centralised claims system. Authorised Providers will start managing new claims on the centralised claims system throughout 2020.

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Actioning injury notifications

Responsible for delivery: Claims service providers

A claim can be lodged in various ways including phone, email, post or web portal and is the first interaction on the claim.

To enable a smooth notification process, there is specific information that must be supplied at a minimum, however you are encouraged to provide as much information as possible during the notification stage of a claim.

Employer and worker responsibilities

Employers and workers have responsibilities in relation to notification of workplace injuries. According to Section 44 of the 1998 Act:

  • A worker must notify their employer that they have received a workplace injury as soon as possible after the injury occurs.
  • An employer must then notify their insurer after becoming aware that a worker has received a workplace injury.
  • A worker or a third-party representative (such as a broker, lawyer, or the Treating Doctor) may also initiate an injury notification.
  • The Claims Service Provider must action the injury notification and send correspondence to confirm receipt.

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Triaging and segmentation

Shared responsibility of delivery: icare and Claims Service Provider

Responsible for delivery: icare

Triage is a process that determines the risk profile of claims by assessing it against biopsychosocial risk factors. It is an ongoing assessment that is most effective three to seven days after lodgement when initial contact has been made and further information gathered.

Triage in the new claims model considers 96 data points and 61 biopsychosocial variables such as:

  • injury type and duration
  • the employer's view of the claim
  • industry
  • availability of suitable duties
  • worker age and health profile.

If sufficient information is received the triage process will automatically identify an appropriate segment.

Where an automatic triage is not available, a specialist with injury management experience will review and allocate the claim to the appropriate segment.

Triage is a continuous process. Throughout the claim lifecycle, as further information is gathered, events occur, and additional risk factors are identified, the triage model will continue to operate and return results to assist in guiding claims management. 

Responsible for delivery: Claims Service Provider

The Claims Service Provider is responsible for updating data fields to ensure risk factors are accurately captured based on the information provided by the employer, worker and their treating practitioners; this is important for collecting information to inform the risk profile of the claim.

Our triage specialists apply a standard clinical practice model to provide the right level of support for each individual claim. The triage system is a support tool to assist Case Managers in understanding the complexity of injuries. All claims with forecast time loss beyond two (2) weeks are assigned to a dedicated Case Manager.

The Claims Service Provider is responsible for ensuring your claim receives the appropriate treatment aligned with its risk profile to maximise recovery and return to work outcomes.

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Segmented escalation throughout the claim lifecycle

Shared responsibility of delivery: icare and Claims Service Provider

Throughout the claim lifecycle, as further information is gathered, events occur and additional risk factors are identified, a claim may be escalated to another segment through the triage process.

How a claim may be escalated

The triage engine (automatic triage) recommends escalation according to information or events on a claim (such as a new risk factor) and the Claims Service Provider accepts the engine's recommendation to escalate.

The Claims Service Provider may decide to manually escalate the claim to another segment without reference to the triage engine, for example, if surgery has been recommended or if the employer makes the Claims Service Provider aware of factors which may delay recovery and return to work.

Once a claim has been assigned to a segment it will not be de-escalated (to a lower complexity segment).

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Guide service segment

This is a team-based approach to case management that is applied to low-risk claims, which aims to facilitate fast resolution with efficient utilisation of claims resources.

Responsible for delivery: Claims Service Provider

A 'low risk' claim is predicted to have:

  • incident only (no payments or support required)
  • medical-only benefits required
  • injuries where time loss is expected to be less than one week from the date of injury.

If you have a 'low risk' claim, a Claims Advisor will be able to resolve your query.

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Support service segment

The support segment is designed to provide you with customised case management for workers who have sustained a significant injury with complex recovery issues, to support recovery at work and designed for higher complexity claims.

Responsible for delivery: Claims Service Provider

Where the claim is predicted to have more than one week time loss it will be managed by a dedicated Case Manager.

You should expect to have most claims in this service segment managed by only one Case Manager, unless your portfolio is large enough to require additional case manager/s.

The Claims Service Provider may choose (but is not required) to further segment claims in this service segment, for instance, they may choose to develop a 'long term' claims team to focus on management of claims which remain open for an extended period and/or where the worker is no longer employed with their pre-injury employer.

You should speak to your Claims Service Provider regarding the claims portfolios within the Support service segment.

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Specialised service segment

The worker and employer are provided with a dedicated and experienced Case Manager who will remain involved throughout the claims journey, and who has lower caseloads to be able to dedicate more time to each claim.

Responsible for delivery: Claims Service Provider

Specialised claims require empathetic, holistic support – managing the impact of the injury beyond the workplace. You will receive tailored case management to meet the needs of:

Primary psychological injury claims

Claims Service Providers must manage psychological injury claims within dedicated portfolios managed by Case Managers with the capability to manage this claim type. It is expected that specialised claim strategies will be applied to these claims to ensure recovery and return to work is maximised and liability is managed in a way that recognises the unique needs and challenges of this claim type.

Medically-complex claims

Medically-complex claims refer to claims which require significant medical management. Generally, workers with this type of injury may need significant periods of hospitalisation and prolonged assistance with daily living activities. Due to the small number of claims in this category and considering the specialised skills required to manage this cohort, it is not expected that all Claims Service Providers will manage these claims. Therefore, claims may be assigned to a centralised team for management with significant oversight by icare.

Fatality claims

Fatality claims include claims where a workplace death occurs prior to claim lodgement and circumstances where the worker dies because of their injury during the course of the claim. Due to the small number of claims in this category and considering the specialised skills required to manage these claims, it is not expected that all Claims Service Providers will manage these claims. Claims may be assigned to a centralised team for management with significant oversight by icare.

Services for fatality claims include:

  • Grief Support and Information Pack
  • assistance in guiding the family through the claim process
  • assistance in guiding the employer through the claim process.

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Workers Care Program (Care segment)

The Care segment is designed to provide empathetic and tailored case management in situations requiring a high-level of sensitivity and long-term care (potentially the whole of life). In this segment icare's 'Integrated Care' manages the worker's ongoing treatment and care, and the overall claim.

Responsible for delivery: icare

If a worker suffers a severe injury, they will have access to the Workers Care Program, making sure that people who experience a severe injury in NSW (whether in the workplace or in a motor vehicle accident) have the same level of support.

The worker will have access to a coordinator within Workers Care who will oversee their treatment and care needs for the life of the claim. This includes coordination of retraining and return to work where this is possible. Workers who qualify for this program are expected to require life-long support and medical care because of their injuries.

The worker will also maintain contact with the Case Manager and the Claims Service Provider to manage weekly payments and all other types of compensation.

Severe injuries which may qualify for the Workers Care Program include:

  • spinal cord injury
  • brain injury
  • amputations
  • burns
  • permanent blindness.

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Decision to commence provisional payments

Responsible for delivery: Claims Service Provider

Once the Claims Service Provider has received an initial notification of injury they must determine liability.

If more information is required to determine liability, they must:

  • start provisional payments within seven calendar days unless there is a reasonable excuse not to or;
  • delay starting provisional weekly payments by issuing a reasonable excuse within seven days.

Provisional payments for medical expenses must commence unless a decision is made to decline the claim.

A reasonable excuse pursuant to the SIRA Workers Compensation Guidelines may apply to provisional weekly payments, in accordance with the Guidelines, reasonably necessary medical expenses will still be paid when a reasonable excuse is applied.

By commencing provisional payments for a claim, the Claims Service Provider can make up to 12 weeks of weekly benefit payments and pay medical payments up to $10,000.

Commencing provisional payments is not the same as accepting full liability for a claim. The Service Provider may need to complete further investigations to make a formal liability decision on the claim.

You will also be informed in writing of the decision to decline the claim.

The time limits for a formal determination of liability are:

  • Twenty-one days in respect of a claim for weekly payments or before expiration of the provisional liability period*.
  • Twenty-one days in respect of a claim for medical or treatment-related expenses.
  • One month in respect of a claim for lump sum compensation or within two months after the Claims Service Provider has received all relevant information about the claim, if a request was made within two weeks of the claim for lump sum compensation.

*A Claims Service Provider is not prevented from accepting or declining liability before the end of the provisional liability period (Section 278 of the 1998 Act). Although provisional liability extends the period in which you can make a liability determination (Section 274(3) of the 1998 Act), a liability decision should be made as soon as the Claims Service Provider has sufficient information.

Where provisional payments have started, and it is likely that weekly payments will continue beyond 12 weeks (from the initial notification of injury), or that medical costs will exceed the provisional amount (capped at $10,000), a decision on liability must be made.

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Liability determination

A liability determination is the process of assessing whether an injured person is eligible for workers compensation benefits for their injury.

An injured person must meet the following criteria to be eligible for workers compensation in NSW:

  • The injured person must have suffered an injury within the meaning of the Workers Compensation Act (1987) and Workplace Injury Management and Workers Compensation Act (1998).
  • The injured person must be a worker within the meaning of the 1998 Act.
  • The injury must arise out of or during employment.
  • The injury must be connected to NSW.

Responsible for delivery: Claims Service Provider

For many claims, liability will be accepted once the Case Manager is satisfied that the worker is a 'worker' (as defined by the legislation) and received an injury (personal injury or disease injury) that satisfies the relevant contributing factor test (for example for a personal injury, employment must be a substantial contributing factor to the injury).

The worker and the employer should be kept informed throughout the decision-making process. The decision will fully consider all information and evidence provided by the worker and the employer.

The Claims Service Provider will inform you and your worker throughout the decision-making process and you'll both receive a letter outlining the liability decision.

Where liability is denied, a notice of dispute must be issued under Section 78 of the 1998 Act. The section 78 Notice will inform the worker of the reasons for the decision, the reports and documents available, considered and relied on in making the decision.

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Liability decision for fatality claim

Liability for fatality claims considers:

  • Was the deceased a worker within the meaning of the Act?
  • Was employment a substantial contributing factor to the death of the worker?
  • Did the death result from an injury that arose out of or in the course of employment?

Shared responsibility of delivery: icare and Claims Service Provider

Liability decisions should be made within 21 days from the date of notification where possible. The Claims Service Provider will contact you and the worker's family to gather relevant information to make a liability decision. Once sufficient information is obtained, a recommendation regarding liability is escalated to icare. icare is accountable for the final liability decision for all fatality claims.

Where a liability recommendation to icare is likely to be delayed beyond 21 days, the steps taken to obtain information relevant to determining liability must be recorded, and an extension request to complete the investigation must be forwarded to icare.

Where a liability decision takes more than 21 days, the next of kin or family legal representative and the employer (you) should be updated at a minimum of every four weeks.

The Claims Service Provider will advise you of the liability decision and communicate the liability decision to the deceased worker's family or legal personal representative.

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Claim strategy

Responsible for delivery: Claims Service Provider

A claims strategy is a plan for managing all aspects of a claim, including:

  • return to work (RTW) and recovery goals
  • capacity for work
  • medical treatment
  • liability and benefits
  • identification of barriers affecting RTW and recovery
  • identification of actions or strategies to overcome barriers and progress the claim.

The claim strategy will be developed and reviewed in collaboration with you, the worker and other key stakeholders associated with the claim.

The claim strategy will be reviewed and updated every four weeks at a minimum, and in response to key events (such as surgery; release from hospital etc.) or based on time (for example in the first 78 weeks of a claim).

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Facilitation of return to work and/or recovery at work

Responsible for delivery: Claims Service Provider

A core aim of the Workers Compensation scheme in NSW is return to work and recovery at work. Your Claims Service Provider will support and promote the health benefits of good work relevant to the claim, such as:

  • Educating stakeholders about their responsibilities to support return-to-work and recovery outcomes.
  • Facilitating return to work and recovery at work wherever appropriate in collaboration with the injured worker; employer and medical service providers.

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Communication and collaboration with stakeholders

Responsible for delivery: Claims Service Provider

Your Claims Service Provider will provide regular communication between you, the worker and other relevant stakeholders throughout the life of the claim to build rapport and maintain cooperation, which can expedite recovery and minimise any disputes or misunderstandings.

icare recognises that employers play an important role in assisting workers to return to work and where possible, recover at work after injury. Therefore, you will have access to relevant information and support to perform this role and meet your statutory responsibilities.

Information may include (subject to legal professional privilege):

  • a copy of the Injury Management Plan
  • medical reports or certificates referred to in the Injury Management Plan
  • rehabilitation Third Party Service Provider reports referred to in the Injury Management Plan.

Requests for provision of other information will also be considered. Your request for information needs to be balanced with the obligation to protect worker's privacy and their personal and health information. For this reason, entire reports/copies of information will not always be provided. In some circumstances a high-level summary of the following reports (which typically contain personal and health information) will be used:

  • IME reports
  • factual investigations
  • legal advice.

You will be provided the following information to keep you updated on the claims progress where the worker remains employed by the pre-injury employer:

  • written notice of any claim liability or treatment decisions
  • details of weekly benefits the worker is entitled to and how that amount has been calculated
  • a workers Certificate of Capacity
  • the workers Injury Management Plan
  • the recover at work plan
  • rehabilitation third party service provider reports
  • where the employer is making payments directly to the worker, notice of any changes or step downs in a workers weekly payment rate
  • notice of any Work Capacity Decisions
  • notice of any Whole Person Impairment outcomes
  • change in Case Manager
  • notification of claim closure or reopen
  • progress and outcome of legal proceedings such as Work Injury Damages claims.

Where the worker is no longer employed by you, you will be provided with the following information:

  • written notice of any claim liability
  • notification of claim closure or reopen
  • change in Case Manager
  • notice of any Whole Person Impairment outcomes
  • progress and outcome of legal proceedings such as Work Injury Damages claims.

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Injury Management Plans

An Injury Management Plan is a written plan for coordinating and managing the treatment, rehabilitation and retraining of an injured worker, for the purpose of achieving a timely, safe and sustainable return to work for the worker.

Responsible for delivery: Claims Service Provider

Your Claims Service Provider will work with you to achieve recovery and return to work goals and activities through an Injury Management Plan. This plan will be reviewed and updated throughout the life of the claim for all significant injuries (a significant injury is defined in Section 42 of the Workplace Injury Management and Workers Compensation Act 1998 to mean a workplace injury where the worker will have an incapacity for work (whether total or partial) for a continuous period of more than seven days).

The injury management plan should include:

  • a goal
  • actions tailored to the worker's RTW strategy, rehabilitation, treatment and claims management
  • person(s) responsible for actions
  • stakeholder rights and obligations (including information on how to change Nominated Treating Doctor)
  • review dates.

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Claims estimation

A claims estimate is the process of applying a monetary value to a claim based on the anticipated future cost of that claim (also known as a reserve).

Shared responsibility of delivery: icare and Claims Service Provider

You will receive the initial claims estimate within one week of the initial notification or upon receipt of claim. Following this, ongoing estimates will be done at 12, 26, 52, 78, 104 weeks, and biannually (beyond 104 weeks) after the date of injury.

An estimate must also be updated whenever new information is gathered that will impact the anticipated future costs of the claim.

Estimates for employers under the loss prevention and recovery model (LPR)

For LPR employers, claims estimates impact the calculation of the Workers Compensation premium. It is especially important for these estimates to be accurate and in accordance with the NSW Claims Estimation Manual.

All claims estimates for LPR employers are conducted manually and are the responsibility of the Claims Service Provider. Automation of estimates is not in place for these claims.

LPR estimate reviews should also occur within 28 days prior to policy renewal date and must be completed and signed off one day prior to the policy renewal date.

Estimates for customers under the Conventional Premium Model

Conventional Premium Pricing considers the cost of claim payments made, however it is not impacted by outstanding claim estimates (reserves).

Most claims estimates are automated in the icare Claims system for these customers. Automated estimation rules are aligned with the NSW Claims Estimation Manual, however the rules associated with claim estimation have been simplified to allow automation to occur.

Rules for automated estimates are set by icare; however, estimates for lump sums (for example Work Injury Damages; Commutation and Permanent Impairment) are completed manually by the Claims Service Provider.

Automated estimating provides efficiencies in claims management and does not affect your premium.

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Claims closure

Claim closure occurs either where the worker no longer has an entitlement to workers compensation and/or when they have recovered from their injury.

Responsible for delivery: Claims Service Provider

Your Claims Service Provider will consider whether a claim is ready to be closed if there are no further requirements for weekly benefits or treatment, and there are no outstanding entitlements, such as Whole Person Impairment (WPI).

When a worker has returned to suitable employment with no wage loss and they are no longer seeking treatment, the claim is likely to be ready for closure.

Your Claims Service Provider will advise you and the worker of the claim closure and it will be confirmed in writing.

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Reopening claims

A claim may be reopened following its closure for a variety of reasons. Claim closure does not necessarily indicate a completion or permanent finalisation of the claim.

Responsible for delivery: Claims Service Provider

Reopening a claim may be necessary for the following reasons:

  • recurrence of the injury
  • further payments are required
  • litigation is commenced
  • claim administration purposes (for example to correct data errors)
  • a formal claim is lodged after provisional liability is discontinued or the claim was closed under a reasonable excuse.

The Claims Service Provider is responsible for reopening the claim and taking appropriate action to manage the claim ongoing.

Where litigation has commenced, icare will manage this aspect of the claim.

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Recovery action against a liable third party

Section 151Z of the Workers Compensation Act 1987 provides a statutory basis for a workers compensation insurer to take action against a negligent third party to recover workers compensation benefits paid.

Shared responsibility of delivery: icare and Claims Service Provider

Workers can sustain injuries at work in several different ways. In some instances, injuries occur due to the negligence of somebody other than the employer (third party).

Claims for recovery may be pursued against the third party, and can arise from, but are not limited to, motor vehicle accidents, public liability (including slips and falls), occupier liability, labour hire placements and assaults.

From 26 October 2018, a worker who receives workers compensation in addition to damages under the Motor Accident Injuries Act 2017 (MAIA) for the same injury is no longer required to repay the workers compensation insurer for medical or related treatment expenses, or permanent impairment compensation/pain and suffering for economic loss. This applies to workers who were injured in a motor vehicle accident on or after 1 December 2017.

The Claims Service Provider is responsible for identifying, investigating and initiating recoveries actions.

For matters commenced up to and including 29 November 2020, icare is accountable for the management of litigation associated with the pursuit of Section 151Z Recoveries and for any decision to cease recovery action where potential has been clearly identified.

For matters from 30 November 2020, the Claims Service Provider is responsible for the management of litigation. icare will have oversight of service delivery for litigated matters. There is a transition period occurring from 30 November 2020 where Claims Service Providers are taking over the management of new litigated matters. This is expected to be completed by early 2021, during which time icare will continue to manage some litigated matters. 

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Initiating and maintaining a Wage Reimbursement Agreement

Responsible for delivery: Claims Service Provider

If you wish to pay weekly entitlements up-front and claim reimbursement from the insurer, you must enter into a Wage Reimbursement Agreement.

The general principles of a Wage Reimbursement Agreement are as follows:

  • Must only be offered to an employer that will guarantee the financial and administrative resources to make payments of weekly compensation in a timely manner and consistent with the legislative requirements.
  • Must be in writing, signed by both parties and held on the underwriting file.
  • Must be reviewed annually at policy renewal and the employer must declare that reimbursements from previous periods have been claimed and no payments are outstanding.
  • Must detail the procedures regarding the payment of weekly compensation to a worker and, where applicable, any other arrangements regarding the recovery or waiving of a claims excess.
  • Must outline the employer's requirements regarding the forwarding of claim documentation (including claim form, Certificates of Capacity, medical or legal information) and other documentation in respect of a claim to the Service Provider in accordance with the requirements specified in Section 69 of the 1998 Act.
  • Must document that the Service Provider will only reimburse the employer for payments made in accordance with the correct weekly benefit entitlement.
  • Must outline the Service Provider's procedures and requirements regarding the calculation of the correct benefit entitlements and the timeliness of payments to workers, including:
    - The process whereby the Service Provider verifies the correct benefit entitlement.
    - The requirement that the employer must notify the Service Provider within five business days when a worker returns to work, or upgrades their hours or duties of work, so the insurer can correctly calculate weekly benefit amount.
    - The requirement that the Service Provider will notify the employer within five business days of a change in the payment amount for weekly payments of compensation.

If a reimbursement schedule is not submitted on time for three consecutive months or if the employer is not compliant with the requirements specified in Section 69 of the 1998 Act:

  • The Claims Service Provider will implement a performance management strategy with the employer.
  • The agreement will be terminated and facility withdrawn if, after three months of performance management the employer is not submitting schedules on time or the schedules are non-compliant or the employer is in breach of Section 69 of the 1998 Act. 

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Payment of weekly benefits

Responsible for delivery: Claims Service Provider

Different expectations apply to the payment of weekly entitlements on claims depending if you have entered into a Wage Reimbursement Agreement.

Where a Wage Reimbursement Agreement is in place, you are responsible for submitting regular Wage Reimbursement Schedules. This is a document which is used to claim reimbursement of weekly compensation payments that you have paid to an injured worker for time lost because of injury.

Where there is no Wage Reimbursement Agreement in place, the Claims Service Provider is responsible for calculating and paying the appropriate amount of weekly compensation upon the receipt of a Certificate of Capacity, and if working, post injury earnings information (for example pay slips) within five days of receiving the appropriate documentation.

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Management of entitlement periods

Ensuring that weekly benefits are paid at the correct rate in accordance with the circumstances of the injured worker and relevant legislative provisions.

This includes providing notice of a decrease or cessation of weekly benefits due to legislative limitations.

Responsible for delivery: Claims Service Provider

After assessing an injured worker's capacity to work and any resultant loss of earnings, weekly benefit payments may be required to be paid for a certain entitlement week.

For most workers in NSW there are different entitlement periods for weekly benefit payments, such as 0-13 weeks which is the first entitlement period, and 14-130 weeks which is the second entitlement period.

The weekly benefit payments may stop after the second entitlement period. However, based on the degree of permanent impairment and minimum working requirements as per section 38, the ongoing weekly benefit payments may be extended beyond the second entitlement period after 130 weeks.

Weekly benefits may then continue from 130 weeks to 260 weeks. Weekly benefits cease after 260 weeks of entitlement except where the worker has been assessed as having a whole person impairment of 21 per cent or more.

Special rules also apply to workers reaching retirement age.

If a worker sustains an injury before reaching the retirement age: weekly benefits may be payable for one year after the date the injured worker reaches retirement age.

However, if a worker sustains an injury on or after reaching retirement age: no weekly benefits are to be paid more than 12 months after the first date of the incapacity.

Entitlement to weekly payments under the legislation may vary between workers due to factors such as:

  • degree of Whole Person Impairment
  • date of injury (different legislative provisions apply to injuries occurring before 21 October 2019)
  • whether the worker was employed in an occupation which is 'exempt' from the 2012 legislative amendments. For these workers, a different schedule of weekly benefits applies.

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Work capacity decisions

Responsible for delivery: Claims Service Provider

This is determined in accordance with legislative and regulatory framework.

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Pre-approval of medical treatment and like services

*Medical treatment is defined by Section 59 of the Workers Compensation Act 1987.

Responsible for delivery: Claims Service Provider

Workers can claim expenses up to certain limits relating to medical treatments and services including ambulance service, hospital treatment, aids, medical and related health treatment and workplace rehabilitation.

Treatment may include:

  • treatment with a medical practitioner or given by the direction of a medical practitioner (including allied health treatment and dental treatment)
  • provision of crutches, artificial body parts (including teeth) and other artificial aids or spectacles
  • nursing care
  • medicines and medical/surgical supplies
  • curative apparatus
  • domestic assistance and personal care services
  • modifications to a worker's home or vehicle.

Certain medical and treatment services can be provided without seeking pre-approval in accordance with the SIRA Guidelines on Treatment Approval. This includes:

  • any treatment within 48 hours of the injury occurring
  • consultations with the Nominated Treating Doctor
  • referral to and consultation with medical specialists
  • public hospital treatment
  • diagnostic investigations
  • pharmacy
  • allied health treatment
  • hearing needs assessment.

It is common for treating practitioners to refer workers to undergo treatment that does not require pre-approval after the first consultation after injury. This enables early access to treatment and services which supports recovery and return to work. The medical treatment must be reasonably necessary and required because of the work-related injury.

Except for expenses not requiring pre-approval, medical treatment needs to be reviewed with a decision made by the Claims Service Provider before the treatment takes place. Your Claims Service Provider will reach this decision within 21 days of receipt; however, a decision will be made sooner where possible.

The Case Manager is responsible may refer to the Official Disability Guidelines (ODG) decision support tool, an injury management specialist or the icare Medical Support Panel for advice.

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Medical Support Panel

Responsible for delivery: icare

The Claims Service Provider is responsible for referring claims to the icare Medical Support Panel (MSP) for advice in relation to treatment and medical causation where required.

Your Case Manager will refer to the MSP within two days of needing additional information, and the MSP will respond within five (5) days.

The MSP will:

  • Provide feedback to the Case Manager supporting the treatment.
  • Contact treating professionals to discuss alternate treatment strategies.
  • Provide guidance to the Case Manager on questions to ask of an Independent Medical Examiner (IME).

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Decisions in relation to new and experimental treatment

Responsible for delivery: icare

A referral to the icare Medical Support Panel is required for all new and experimental procedures. icare is accountable for making a decision in relation to approval of these services.

New and experimental treatment includes (but is not limited to):

  • osseointegration
  • medicinal cannabis
  • stem cell treatment
  • assistance animals
  • any other medical or related service that does not have an associated Australian Medical Association (AMA) item code.

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Management of medical benefit limitations

Ensuring that medical benefits are approved and paid in accordance with the circumstances of the injured worker and relevant legislative provisions. This includes providing notice of a cessation of medical payments due to legislative limitations.

Responsible for delivery: Claims Service Provider

Once a worker's weekly payments cease (or date claim was made if no weekly payments have been paid), medical benefits entitlement periods are categorised based on the percentage of permanent impairment that has been assessed.

This table shows how long the worker is entitled to continue to receive medical benefits after the last weekly payment was made, or date the claim was made, whichever is the latter.

Permanent Impairment Medical Benefit Limit
Up to 10% 2 years
11%-20% 5 years
Greater than 21%  For life

These limitations apply to all workers, except those employed in an occupation which is 'exempt' from the 2012 legislative amendments.

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Permanent impairment lump sum

If a worker has sustained a workplace injury or illness that is permanent in nature, they may be entitled to receive a lump sum payment as compensation. This is in addition to weekly payments, medical and related expenses.

The payment of a permanent impairment claim does not constitute settlement or closure of the claim.

Responsible for delivery: Claims Service Provider

Various eligibility thresholds apply to the payment of permanent impairment lump sums. For claims made on or after 19 June 2012 (excluding exempt workers) the following thresholds apply:

  • physical injury: greater than 10 per cent whole person impairment
  • primary psychological injury: 15 per cent whole person impairment

A reasonable offer of whole person impairment of 15 per cent or greater requires consultation with icare prior to the decision or offer being communicated. The claims service provider is responsible for the final decision.

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Work Injury Damages

If a worker is injured in circumstances where the employer was negligent, the worker may have a right to sue for modified common law damages.

Payment of Work Injury Damages (WDI) constitutes settlement of a claim via lump sum.

Responsible for delivery: icare

For a worker to be able to claim work injury damages, the following criteria must be met:

  • The work injury must be the result of employer negligence.
  • The injury has resulted in at least 15 per cent WPI (Section 151H of the 1987 Act).
  • At least six months have elapsed between the date of injury and the issue of proceedings (Section 151C of the 1987 Act).
  • A claim for lump sum compensation is made before or at the same time as the claim for work injury damages (Section 280A of the 1998 Act).

There are four elements the worker must overcome to establish liability/negligence:

  • Their employer owed them a duty of care.
  • There was a breach of the duty of care.
  • The employer's negligence caused the worker to suffer loss; and
  • There was a foreseeable risk of injury associated with the work they were doing.

The Claims Service Provider manages the legal actions on all common law and WID claims from inception to closure, with the exception of those that are anticipated to be greater than $500,000 in value. The icare Litigation Team will manage those matters.

After a worker accepts settlement of their claim through a WID claim, they forego any other entitlements on the claim, therefore weekly payments and medical payments will cease.

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Commutation

A commutation is a settlement of a worker's remaining entitlement to weekly benefits and medical expenses by way of lump sum payment.

A commutation agreement is a voluntary agreement between the worker and the Claims Service Provider. Both the worker and the Claims Service Provider work together to determine whether the claim is suitable for commutation and to mutually agree to the commutation amount to be paid to the worker.

On some occasions, the worker (or the worker's legal representative) will contact the Claims Service Provider to make an offer to commute their benefits. On other occasions, it will be Claims Service Provider who will make an offer to the worker.

Shared responsibility of delivery: icare and Claims Service Provider

The preconditions, all of which must be met, for a commutation payment are set out in Section 87EA of the 1987 Act and are summarised as follows:

  • An assessed WPI of 15 per cent or more; and
  • Permanent impairment compensation has been paid; and
  • A period of at least two years has elapsed since the first claim for compensation for that injury; and
  • All opportunities for injury management and return to work have been exhausted; and
  • The worker has an existing and continuing entitlement to weekly benefits and has been in receipt of such benefits for the preceding six months; and
  • The worker has not had benefits terminated due to failure to comply with return to work obligations; and
  • A minimum of 104 weeks of weekly benefits has been received.

If the worker wishes to proceed with a commutation payment, they must seek independent legal and financial advice (State Insurance Regulatory Authority (SIRA) requirement) and they should produce a letter from their legal representative confirming that they have received advice on the merits of accepting a commutation payment.

There are seven basic steps in the procedure to enable a commutation of Workers Compensation Benefits to occur. Both icare and the Claims Service Provider have a role to play, as outlined below:

  1. A commutation opportunity is identified. This can be a result of a worker requesting a commutation, or by a Scheme Service Provider as part of the claims management/strategy
  2. Claims Service Provider collects information demonstrating that all preconditions have been met and provides to icare
  3. icare reviews the information and if agrees that the claim meets the pre-conditions, will submit to SIRA for review and pre-approval
  4. If pre-approval is obtained, agreement between the worker and the Service Provider to commute the claim is then sought
  5. Once an agreement is reached, icare will send the application to SIRA along with the supporting information demonstrating that all preconditions have been met.
  6. SIRA issues certificate confirming Section 87EA of the 1987 Act criteria has been met.
  7. The commutation agreement is then registered with the Personal Injury Commission (PIC) (Section 87H of the 1987 Act)

Once the PIC has registered the commutation agreement, the Claims Service Provider can pay the agreed amount to the worker. Payment must be made within the prescribed period, which is set out in the commutation agreement.

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Workplace rehabilitation services

Responsible for delivery: Claims Service Provider

Workplace rehabilitation involves early intervention with appropriate, adequate and timely services in response to the worker's assessed need. It is aimed at maintaining injured workers in, or returning them to, pre-injury or suitable employment.

Workplace rehabilitation providers (WRP) can offer either a single service or a comprehensive rehabilitation program.

The following is considered when referring for workplace rehabilitation services:

  • What does the worker need?
  • What can the employer offer?
  • What are the barriers to returning to work?
  • What is the return to work goal?

You may nominate a WRP as per the worker's return to work program (refer to the Workers Compensation Regulation 2016, part 6, clause 16). A doctor may also recommend a provider; however, it is the Claims Service Provider's role to engage a provider and consult the worker prior to the commencement of any rehabilitation services as the worker must have the opportunity to refuse or request a change in provider. Refer to the Guidelines for workplace return-to-work programs (May 2017).

Where no arrangement or preference exists, the specific needs of the worker will be considered, including where they live and work, and they will be assigned a provider from icare's panel of 22 appointed providers located throughout Metropolitan Sydney and NSW.

icare monitors the service of the provider panel to improve stakeholder relationships and achieve consistent best practice rehabilitation services.

The following types of referral for services may be made:

Same employer/recover at work services

A Same Employer program will involve the WRP in developing a RTW strategy in consultation with all involved stakeholders to determine the best pathway to returning the worker to employment with their pre- injury employer.

New employer/return to work services

When the RTW goal has been changed to focus on finding employment with a new employer, a new employer RTW strategy will be developed and a RTW (or rehabilitation) plan will be submitted to the Claims Service Provider for approval.

The aim of this plan will always be to return a worker to suitable employment with a level of remuneration equivalent, or close to the worker's pre-injury remuneration.

One-off services

Referral for a one-off service may be made to assist in progressing the claim strategy. These services may form part of a RTW plan with the pre-injury employer or as part of new-employment return to work strategies.

One-off services include:

  • vocational assessments
  • workplace assessments
  • functional assessments
  • assessment and development of a job seeking strategy (where the Service Provider claim owner will manage the implementation of the strategy)
  • assessment and development of a SIRA vocational program proposal and strategy (where the Service Provider claim owner or employer will manage the implementation).

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Legal referrals

Responsible for delivery: Claims Service Provider

Sometimes, claims decisions can involve complex liability issues or circumstances which may benefit from external legal advice.

If, after consulting with internal resources, additional support is required to make a sound decision on claim liability, the Claims Service Provider may seek advice from icare's panel of legal services providers where:

  • a decision on liability is pending
  • the referral is for legal advice on liability
  • the referral is in relation to litigated matters that are being managed by the Claims Service Provider.

In circumstances where there is a dispute (internal review) or litigation managed by icare, legal referrals are made by the icare dispute resolution and litigation team.

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Claims investigations

This includes Factual Investigations and Desktop investigations.

Factual Investigations are independent investigations to determine the facts surrounding the injury or incident.

Desktop investigations refers to the collection of, and reporting on, information concerning and individual that is obtained from publicly available information.

Responsible for delivery: Claims Service Provider

A factual investigation is often arranged to:

  • gather additional facts to assist the Claims Service Provider in making a liability decision
  • examine common law potential
  • examine recovery potential
  • investigate other aspects of a claim.

When this information is received, the Claims Service Provider may be in a better position to assess and determine liability in accordance with Workers Compensation legislation, ensuring that we are making a soundly based decision.

A factual investigation should be organised as soon as it becomes apparent that liability and the circumstances surrounding the claim needs clarification.

A factual investigation is one way in which additional information can be gathered.

Examples of when a factual investigation may be appropriate:

  • When witness statements will assist understanding the circumstances of the accident or situation.
  • An inspection of the workplace/injury location is required to obtain further information on the circumstances of the injury.

The investigator is a 'fact finder', they are required to obtain all the facts, regardless of whether they are in the favour of the worker, the employer or the Service Provider.

It is not the investigator's role to make recommendations, give opinions, or make any decision regarding the claim, that is a matter for the Claims Service Provider.

Factual investigations are generally released to the worker if they are relied upon in a dispute. Any person involved in providing a statement is entitled to a copy of their own statement. There may be other limited circumstances where factual reports may be released.

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Complaints

A complaint is any expression of dissatisfaction made to an organisation related to its products, service or the complaints handling process where a response or resolution is explicitly or implicitly implied.

Shared responsibility of delivery: icare and Claims Service Provider

Complaints provide valuable feedback to enable us to improve our service and customer experience, and to clarify any misunderstanding or rectify a mistake we may have made.

If you make a complaint you should expect the Claims Service Provider or icare to:

  • allow you enough time to explain
  • avoid premature judgments or opinions
  • where a mistake has been made on our part, acknowledge, apologise, explain what happened and try and rectify the situation
  • record your conversation
  • complete actions to resolve
  • keep you updated
  • follow up to make sure you are satisfied.

In the first instance, we encourage you to raise your complaint with the Claims Service Provider.

If the Claims Service Provider is unable to resolve your complaint within two days, the complaint is escalated to icare for management and resolution.

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Disputes/internal review 

A dispute arises when there is a disagreement with a Claims Service Provider's decision on a claim.

Responsible for delivery: icare

You or the worker can dispute a decision on a claim through an optional internal review. This internal review is conducted by icare.

The following decisions can be reviewed:

  • compensation and liability disputes (for example whole of claim liability; weekly benefits; treatment and care; permanent impairment disputes)
  • work capacity disputes (for example current work capacity; suitable employment; the amount a worker can earn in suitable employment; the amount of pre-injury average weekly earnings (PIAWE) or current weekly earnings).

The decision will be confirmed, or a different decision will be made on review within 14 days of receipt of request for review.

icare cannot review decisions where the decision relates to:

  • provisional liability
  • application of weekly entitlement periods
  • where there is no notice of decision communicating a PIAWE calculation.

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Litigation

Litigated matters are disputes which have been escalated to involve legal action.

Shared responsibility of delivery: icare and Claims Service Provider

All litigation on a claim commenced on or before 29 November 2020 is managed by the icare Litigation Team. The Claims Service Provider will continue managing other aspects of the claim and continues to be the main point of contact for you and the worker in relation to the claim.

Any matter commenced on or after 30 November 2020 is managed by the Claims Service Provider, with the exception of Significant Legal Matters which will continue to be managed by icare.

Note: There is a transition period occurring from 30 November 2020 where claims service providers are taking over the management of new litigated matters. This is expected to be completed by early 2021, during which time icare will continue to manage some litigated matters.

Any litigation in relation to a worker's claim should be actioned quickly and dealt with honestly and fairly.

The Model Litigant Policy for Civil Litigation (set out in the New South Wales Premier's Memorandum issued on 29 June 2016) must be applied. Some key requirements of that policy are:

  • litigated matters and claims are dealt with promptly
  • legitimate claims are paid without litigation
  • acting consistently in the handling of claims and litigation
  • endeavouring to avoid litigation wherever possible
  • litigation costs being kept to a minimum
  • a claimant should not be taken advantage of
  • technical defences should not be relied upon
  • only pursing appeals where there are reasonable prospects of success or is otherwise justified
  • providing reasonable assistance to claimants and their legal representatives in identifying the proper defendant.

Types of appeals:

  • appeals against Medical Assessment Certificates (MACs)
  • appeals against a Medical Appeal Panel's decision
  • appeals against an Arbitrator's decision
  • judicial review applications
  • appeals to higher courts (Supreme Court of Appeal or High Court of Australia).

For any matters relating to appeals, check with your Technical Specialist or contact the Litigation Team.

Note: Costs

In Personal Injury Commission proceedings that commenced after 2 April 2013, each party is to pay its own legal costs. This rule does not apply to proceedings involving an injury received by exempt workers (police officer, paramedic, fire fighter or coal miner). These workers are exempt from the 2012 amendments to the Workers Compensation Acts and can recover their legal costs at the Personal Injury Commission.

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