WorkCover overturns historical workers compensation provision

All employers need to keep a close watch on what their WorkCover insurer is up to because the insurer may not be acting in their policy holders’ best interests.

A letter dated 29 June 2015, from WorkCover to its Agents contained a “direction” that when a referral to an Independent Medical Examiner (IME) is to be made in future, an injured worker must be afforded the opportunity to select their own IME.

As those who may be familiar with the way the WorkCover system operates, IMEs are used for any number of reasons when the employer (insurer) wants an independent opinion on diagnosis, treatment or liability.

The right of an employer to refer a worker who has made a claim to an IME is enshrined in Section 119 of the 1998 Workers Compensation and Injury Management Act, but was originally contained in the very first NSW Workmens’ Compensation Act of 1910.

Schedule 8 of the 1910 Act provided that “Where a workman has given notice of an accident he shall, if so required by the employer, submit himself for an examination by a duly qualified medical practitioner provided and paid by the employer; and if he refuses to submit himself to such examination, or in any way obstructs the same, his right to compensation shall be suspended until such examination take s place.”

By directing its Agents to ignore the provisions of the current Workers Compensation Act thereby overturning an historical precedent that has been the right of an employer for more than 100 years, WorkCover has acted ultra vires and may possibly have given an unlawful direction.

All employers need to remember that provisions of Section 119 (subject to the WorkCover Guidelines, which are silent on this matter) provide an employer with an absolute right to refer an injured worker to a medical practitioner of the employer’s choice.

When an Agent implements a procedure which permits a worker a choice of IME, without first consulting with the employer, they will be in breach of the intent of the legislative provisions which provide the employer with an opportunity to independently test the opinions of a NTD or of a NTS using a medical practitioner of their choice and not one chosen by the worker concerned.

In issuing the direction to its Agents, WorkCover seems to have embraced the idea of the worker being given a choice of IME, on the basis that it will reduce disputation.  This demonstrates a fundamental misunderstanding of the purpose of the Section 119 examination which is for the benefit of the employer and not an injured worker.

Employers should contact their insurance brokers, industry associations or Agents to ensure that this critical right is not removed or diluted by other than a legislative change, which would be subject to the proper Parliamentary process.

September 9, 2015