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Insights

Time and time again we receive contact from workers who have encountered issues with the employers after sustaining injuries. Most common of those complaints are: “I suffered an injury, and my boss was paying for physiotherapy from petty cash but has now stopped”.

Firstly, red flags are raised when an employer starts paying for treatment directly. This is because all treatment should be paid through a workers compensation insurer.

Sometimes, however, in order to keep their statistics in check an employer may think it a good idea not to report the injury to their insurer, and instead pay for small amounts of treatment from their own pocket.

This is illegal.

Under the law, an employer is required to notify their workers compensation insurer of a workplace injury within 48 hours of its occurrence.

Once the insurer is notified of the injury, a workers compensation claim will be opened. The insurer will decide whether it is liable to pay for weekly benefits (for loss of wages) and also for treatment expenses.

For the insurer to pay for the medical expenses, the treatment must be “reasonably necessary”. The State Insurance Regulatory Authority of NSW (called “SIRA”) published Guidelines to be used by insurers in making these decision as to whether treatment is “reasonably necessary”. Those Guidelines say that the following factors, among others, should be used in determining the necessity of treatment:

  • the appropriateness of the particular treatment
  • the availability of alternative treatment
  • the cost of the treatment
  • the actual or potential effectiveness of the treatment
  • the acceptance of the treatment by medical experts.

Whilst each request for treatment will be assessed on its individual merits, the threshold for meeting the test of reasonable necessity is not overly burdensome and, in most cases, you will have some form of treatment made available to you.

If the insurer decides to reject your request for treatment, you can seek legal advice.

Under the NSW scheme, workers are generally entitled to seek funding from the Independent Review Office which will cover their legal fees and disbursements. This means that by seeking legal advice for workers compensation claims, you should not be out-of-pocket for legal fees and charges. To be eligible for such funding, the lawyers must Approved Legal Service Providers.

At Kells we have multiple approved lawyers who can access such funding on your behalf.