Prior to the Hearing

Disputes under s81A

When an employer receives a claim for compensation weekly payments must commence and continue (if you are certified 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 of the claim being made:

• serve you with written notice that it disputes liability to pay compensation
• inform you of the reasons for disputing liability
• refer the matter to the Tribunal under section 81A.

Disputes under s77AB

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 pay the expense within 28 days of receiving the claim for payment .  When a claim for payment of an expense is received by an employer, they must usually pay the claim for an expense within 28 days of receiving the claim (but up to a limit of $5,000.00 of combined amounts of claims).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 reference to the Tribunal, must provide copies of all evidentiary material that it intends to rely upon at the hearing; e.g. medical reports, witness statements etc. The reference and all the evidentiary material will be posted to the worker prior to the hearing.

If the employer wants to provide further documentation after lodging the referral, the employer must seek permission of the Tribunal before it can rely on it.

When the  Tribunal receives a referral it will list the matter for hearing within 14 days.

Attendance at hearing

At a s81A hearing the Tribunal Member 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: e.g. a factual dispute or a difference in medical opinion.

At a s77AB hearing the Tribunal Member will determine whether it is reasonably arguable that the expense is unreasonable or unnecessary.

If the claimant agrees that the employer has a "reasonably arguable case" the claimant, or their representative, can consent to an order being made that the employer is no longer liable to make weekly payments of compensation nor the cost of any benefits (in the case of a s81A referral) or that the employer is not liable to pay the expense (in the case of a s77AB referral).  However, the Tribunal Member must still be satisfied, based on the evidentiary material provided by the employer, that a reasonably arguable case exists.  If the Tribunal Member is satisfied of that, an order will be made and parties will not be required to attend the hearing.

At the hearing the Tribunal Member will firstly hear from the employer or its representative.  The Claimant or their 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 a party has documents or other information that  they believe will support their case these can be put before the Tribunal.  Copies will need to be provided to the Tribunal, and each other party (eg.the employer and/or the insurer prior to the hearing.)

After considering all the evidence the Tribunal Member will make a determination whether a reasonably arguable case exists.   If the hearing is of a complex nature the Tribunal Member may reserve their 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 Tribunal Member will usually make an order that weekly payments and other benefits not be paid from the date of the order.

Adjournments

If a party wishes to make an application to have the matter adjourned for a short period of time they must make that application in writing (by email) outlining the reason for  seeking an adjournment and how long you need the matter adjourned for.

The Tribunal will then forward your application for an adjournment to each other party, , if the other parties consent to the adjournment, the matter can be adjourned.

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.

Can I be compelled to attend?

If you do not attend the hearing the matter will proceed without you.  Orders will be made and a written reasons as to why those orders were made will be sent to all parties.

Can I bring a lawyer?

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 before the Tribunal are not open to the public.

After the Hearing

If the Tribunal decides that a reasonably arguable case exists and the claimant wants to pursue their claim further they will need to lodge a referral to the Tribunal 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 and/or in relation to liability in general, depending on whether there was a hearing under s77AB, s81A or both.

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.