Concerned About Payments To Workers Residing Overseas? By Craig Bell | December 2007 Area of Expertise | Workers Compensation
Summary Assessment of weekly compensation for workers residing overseas is treated differently by the legislation depending on whether the payment is voluntary or pursuant to an Award. Furthermore, greater scrutiny should be applied to evidence provided by an overseas worker in support of claims for weekly beneďŹ ts and medical expenses.
Who Does This Impact? Workers and insurers.
What Action Should Be Taken? Before reviewing payments to workers living overseas, assess the claim pursuant to the provisions set out below.
Introduction I receive many enquiries from insurers and employers regarding ongoing weekly entitlements and medical expenses for workers who have ceased to reside in Australia. Given the enquiries that I have encountered, it is timely to revise the claims responsibilities and the state of the Legislation regarding this scenario.
Discussion If a worker is on voluntary payments of weekly compensation and ceases to reside in Australia, pursuant to Section 23(b) of the Workers Compensation Act 1987 (WCA, 1987), prima facie, compensation is payable to that person. Section 23 Age or residence not relevant to liability (cf former ss 53D, 72) Compensation under this Act is payable to a person, and proceedings for the recovery of compensation under this Act may be instituted by a person, even though: (a) the person is under the age of 18 years, or (b) the person resides, or at any time resided, outside New South Wales. Some insurers and employers, however, often consider the relevance of Section 53 of the WCA 1987. Section 53 Weekly payments--residence outside the Commonwealth (cf former s 54) (1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certiďŹ es, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature. (2) If the incapacity is so certiďŹ ed or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals
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Concerned About Payments To Workers Residing Overseas? by Craig Bell
as the Authority may require, the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable. The case law has clearly indicated that Section 53 only applies to workers that are being paid or have entitlements to weekly compensation pursuant to an Award. Djuric v Render Set Australia Pty Limited (2000) 20 NSWCCR 626 and Hickey v Ram Roofing Pty Limited (1997) 15 NSWCCCR 616 and more recently in Merriman v Anaco Holdings Pty Limited t/as Paddington Fresh Foods Broadway (2006) NSW CCPD5. Therefore it does not apply to workers who are on voluntary payments. Therefore if a worker who ceases to reside in Australia is on voluntary payments, the insurer\employer has an obligation to continue to pay the worker pursuant to Section 23(b) and the usual provisions of the Act relating to incapacity and weekly payments (Division 2 of Part 3 of the WCA 1987 (Section 33 to 58)). This was made clear by Judge Burke of the NSW Compensation Court in the matter of Djuric. Of course if a worker has an entitlement pursuant to an Award the worker must, if the worker seeks continuing weekly payments, apply to the Commission for a certification or determination that the incapacity is likely to be of a permanent nature. It is important to note that the Commission can make a determination based on the available evidence without the requirement for an approved medical specialist. Whether or not an arbitrator would make a decision without the assessment of an Approved Medical Specialist will be determined, primarily, by the state of the medical evidence.
Medical Evidence Of course if a worker is residing outside Australia it is likely the worker will have medical treatment and would seek the costs of the medical treatment. Pursuant to Section 60 of the WCA 1987, any medical or related treatment must be reasonable and necessary as a result of the injury. Medical or related treatment is defined under Section 59 of the WCA 1987 as including medical or related treatment provided by a medical practitioner. A medical practitioner is defined in Section 59 as meaning “a duly registered medical practitioner under the Medical Practitioner’s Act 1938 or under any law or any other State or a Territory of the Commonwealth”. I note that the Medical Practitioners Act 1938 has been superseded by the Medical Practice Act 1992. Thus, unless the general practitioner who treats the worker outside Australia meets the definition above, the insurer\employer is not liable for the treatment and an appropriate Section 74 (Workplace Injury Management and Workers Compensation Act, 1998) declinature notice should be issued. Clearly in most cases the general practitioner treating the worker outside Australia would not meet the definition and therefore the issue of liability for such treatment should be considered very carefully.
Status of Medical Certificates The WorkCover Guidelines clearly indicate that, to support a claim for incapacity, the worker must supply a WorkCover medical certificate: Part 2, Clause 3 of the WorkCover Guidelines for Claiming Compensation Benefits. A WorkCover medical certificate must be completed by a medical practitioner registered under the Medical Practice Act 1992 (See Section 4 of the Workplace Injury Management and Workers Compensation Act, 1998 and Section 21 of the Interpretation Act, 1987 (NSW)). Therefore it is highly unlikely that a medical certificate issued on behalf of the worker who is residing outside Australia meets the appropriate criteria for the following reasons:
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It may not be a WorkCover medical certificate.
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It is completed by a general practitioner who is not a medical practitioner registered by the Medical Practice Act.
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If the insurer receives such a medical certificate, it can be reasonably excused from dealing with the claim if it notifies the worker in writing within 7 days after receiving the medical certificate that the medical certificate is deficient. Part 2 Clause 5 of the WorkCover Guidelines for Claiming Compensation Benefits.
Summary If a worker ceases to reside in Australia and continues to claim weekly compensation it is clearly not a simple question of implementing Section 53 of the WCA 1987 and stopping payments. The primary obligation of the insurer lies in Section 23 as referred to above. The insurer should only contemplate the provision of Section 53 if the worker is receiving compensation by way of an Award. If the worker receives treatment outside Australia and requests the payment of costs for that treatment, the insurer should be wary as to whether or not the treatment meets the definitions under the Legislation as referred to above.
For more information, please contact:
Craig Bell Partner T: 02 8257 5737 craig.bell@turkslegal.com.au
Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099 Business & Property | Commercial Disputes | Insurance & Financial Services | Workers Compensation | Workplace Relations
www.turkslegal.com.au
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