Disputes under section 77AB
Prior to the hearing:
This section applies where an employer of a worker who has made a claim for compensation has not accepted or is not taken to have accepted liability to pay compensation for an injury to the worker.
An employer who receives a claim for payment of an expense, where the amount of that expense when combined with the amount of expenses already paid, is not more than $5,000.00, must within 28 days of receiving the claim for payment pay the expense. However, if the employer believes the expense is unreasonable or unnecessary it may;
- serve the worker with a notice specifying why the expense is unreasonable or unnecessary;
- notify the service provider who rendered the account that liability for the expense is disputed and give its reason; and
- refer the dispute to the Tribunal under Section 77AB
In cases where a section 77AB referral and an 81A referral are received within a short time of each other the Tribunal will list the referrals at the same time.
The Employer, when it makes its 77AB reference to the Tribunal, must provide copies of all evidentiary material that it intends to rely upon at the hearing, eg, medical reprots, witness statements. The referral and accompanying material will be posted to the worker prior to the hearing.
If the employer provides further documentation after lodging the referral it must seek permission of the Tribunal before it can rely on it.
Upon receipt of the 77AB referral the Tribunal will list the matter for hearing at the earliest possible date, usually within one week.
At this hearing the Commissioner will determine whether it is reasonably arguable that the expense is unreasonable or unnecessary.
If parties wish to contact the Tribunal prior to the hearing they should refer to the name and number listed on the Hearing Notice. Please note that the Tribunal staff cannot provide legal advice.
Legal representation is not necessary at these hearings. However, parties are able to have a lawyer, union representative or support person present to assist them. Hearings at the Tribunal are not open to the general public.
If a worker agrees that it is "reasonably arguable" that the expense is unreasonable or unnecessary he/she or their representative should advise the Employer or the Insurer. They will arrange for the appropriate consent forms to be completed and provided to the Tribunal. The Tribunal will then make an Order that the Employer is not liable to pay the expense. Parties will then not be required to attend the Hearing.
If a "reasonably arguable" finding is made and the worker wishes to pursue his/her claim it will be necessary for him/her to lodge a section 42 referral for the matter to be dealt with on the merits (see conciliation process). This referral may be in respect of either a claim for an expense or in relation to liability in general wher an 81A hearing was also held.
If a party wishes to make application to have the matter adjourned for a short period of time he/she should contact the other party stating the reasons for seeking the adjournment and request its consent. If all parties consent to the adjournment the Tribunal should be advised.
If consent to the adjournment is not given the parties can contact the Tribunal and arrangements will be made for the matte to be listed for directions by a Commissioner. The Tribunal will consider the reasons why a party wants an adjournment and decide if that is appropriate.
At the Hearing
If you do not attend the hearing the matter will proceed without you. Orders will be made and a written account of the proceedings will be sent to all parties.
At the hearing the Commissioner will firstly hear from the employer or its representative. The worker or his/her representative will be given an opportunity to respond. Any submissions or evidence can only relate to whether or not the employer has a reasonable basis for arguing that the claimed expense is unnecessary or unreasonable.
If a worker has documents or other information that he/she believes will support his/her case these should be provided to the employer or insurer before or at the hearing.
After considering all the evidence the Commissioner will usually make an immediate decision on the reference. However, if the hearing is of a complex nature the Commissioner may reserve his findings and hand them down in writing at a later date.
If the Commissioner is satisfied that it is reasonably arguable that an expense is unreasonable or unnecessary he will order that the employer is not liable to pay the expense at this time.
After the Hearing
If you wish to pursue your claim further you may do so by reference to the Tribunal (please see details of the Conciliation process). A Tribunal staff member will be available to discuss the process following the hering should you require it.
Frequently asked questions
Q: What does a "reasonably arguable case" determination mean?
A: "reasonably arguable case" means that the Tribunal has been satisfied that the employer has a reasonable basis for asserting that the claimed expense is unreasonable or unnecessary.
Q: Does a "reasonably arguable case" determination mean my employer has won and I have lost?
A: No, this just means that the employer has identified a reasonable basis for dispute. An issue has been identified that will need to be resolved before a final decision can be made about the claim.
Q: Do I need a lawyer?
A: Legal representation is not necessary at this hearing but is purely a personal choice. You can have a support person of your choice to assist you at the hearing.
Q: After a "reasonably arguable case" determination does the worker need to continue to provide the employer with workers compensation medical certificates and accounts for medical and associated benefits?
A: Yes, it is important that whilst the worker is incapacitated for work that he/she continues to provide workers compensation medical certificates to the employer and keep records or copies of accounts and receipts.
Q: If I don't have a lawyer can someone else speak on my behalf?
A: Yes but the Tribunal must be satisfied that the representative has your authority to do so.
Q: How do I address the Commissioner?
A: You should address the Commissioner as "Sir" or "Commissioner".