Disputes under Section 81A of the Act (Notes for the Assistance of Workers)
Prior to the Hearing
When an employer receives a claim for compensation weekly payments must commence and continue (if you are incapacitated for work) until there is an order of the Tribunal that weekly payments and/or associated benefits not be paid.
If an employer intends to dispute your claim it must, within 84 days:-
- Serve you with written notice that it disputes liability to pay compensation;
- Inform you of the reasons for disputing liability, and
- Refer the matter to the Tribunal under S81A
The employer, when it makes its reference to the Tribunal, must provide copies of all evidentiary material that it intends to rely upon at the hearing, eg medical reports, witness statements etc. The reference and all the evidentiary material will be posted to you prior to the hearing.
If the employer seeks to provide further documentation after lodging the referral it must seek permission of the Tribunal before it can rely on it.
Upon receipt of the 81A reference the Tribunal will list the matter for hearing within 14 days.
At this hearing the Commissioner is not deciding whether the claim should be accepted or rejected. Instead, what is being decided is whether the Tribunal is satisfied that there is a reasonable basis for the employer to dispute its liability for the claim eg a factual dispute or a difference in medical opinion.
If you agree that your employer has a "Reasonably Arguable Case" you, or your representative should discuss this further with your employer or the insurer. they will arrange for the appropriate consent form to be completed and provided to the Tribunal. The Tribunal will then make an Order that the employer is no longer liable to make weekly payments of compensation nor the costs of any benefits. You will then not be required to attend the hearing.
If you wish to contact the Tribunal prior to the hearing you should refer to the name and number listed on your Hearing Notice. Please note that the Tribunal Staff cannot provide you with legal advice or advice upon the likely success of your case.
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 the Tribunal decides that a reasonably arguable case exists and you want to pursue your claim further you will need to lodge a referral to the Tribunal for the matter to be dealt with on the merits (see conciliation process).
If you wish to make an application to have the matter adjourned for a short period of time you should contact your employer or it's insurer stating the reasons for seeking the adjournment and request its consent. If the employer or insurer consents to the adjournment it should advise the Tribunal.
If consent to the adjournment is not given you can contact the Tribunal and arrangements will be made for you to appear before the Tribunal to seek an adjournment. The Tribunal will consider the reasons given 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. You or your representative will be given an opportunity to respond. Remember, any submissions or evidence can only relate to the question whether the employer has a reasonable basis for disputing liability for the claim.
If you have documents or other information that you believe will support your case these should be provided to the employer or insurer either before or at the hearing.
After considering all the evidence the Commissioner will make a determination whether a reasonably arguable case exists. If the hearing is of a complex nature the Commissioner may reserve his findings and hand them down in writing at a later date. Weekly payments will continue until the findings have been delivered.
If a "Reasonably Arguable Case" is found the Commissioner will usually make an order that weekly payments and other benefits not be paid from the date of the order.
After the Hearing
If you wish to pursue your claim further you may do so by reference to the Tribunal (please see details of conciliation process). A Tribunal staff member will be available to discuss this process following the hearing should you require it.
Frequently Asked Questions
Q: What does a "Reasonably Arguable Case" determination mean?
A: A "Reasonably Arguable Case" means that the Tribunal has been satisfied that the employer has a reasonable basis for disputing the claim.
Q: Does a "Reasonably Arguable Case" determination mean my employer has won and I have lost?
A: No, this just means that your employer has identified a reasonable basis for dispute. An issue has been identified that will need to be resolved before a formal determination can be made about your claim. This is only a preliminary step in the dispute and you have the option to pursue your claim by applying to the Tribunal. You will then need to prove your 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 do I need to continue to provide my employer with workers compensation medical certificates and accounts for medical and associated benefits?
A: Yes, it is important that whilst you are incapacitated for work that you continue to provide workers compensation medical certificates to your employer and keep records or copies of your accounts and receipts.
Q: I only put in a claim because I was told to. I have not lost any salary or incurred any expense. Why do I have a notice to attend a hearing?
A: If an employer has identified a reasonable basis for dispute, it will refer the matter to the Tribunal in order to obtain an order to ensure that it is not deemed to have accepted the claim should you make future claims in respect of the injury. If the employer does not refer such a dispute to the Tribunal within the 84 day time limit then it is deemed by law to have accepted the claim. You do not have to attend the hearing if you do not wish to but in those circumstances it will proceed in your absence.