Scheme guidance: Statutory timeframes for decision-making under the SRC Act

Background

The Safety, Rehabilitation and Compensation Amendment (Period for Decision-making) Regulations 2023 (the Regulations) introduce statutory timeframes for decision-making under the SRC Act in relation to:

• initial claims for workers’ compensation under section 14 of the SRC Act; and
• requests for reconsiderations of determinations^[1] made by a claimant.^[2]

The Regulations prescribe the following periods for decision-making:

• 20 calendar days for claims made in respect of an injury (other than a disease) or an aggravation of an injury (other than a disease);
• 60 calendar days for claims made in respect of a disease; and
• 30 calendar days to decide a request by a claimant to reconsider a determination.

The prescribed timeframes apply to Comcare and self-insured licensees.

The statutory timeframes for decision making commenced on 1 April 2024.

The changes amend Part 2 of the Safety, Rehabilitation and Compensation Regulations 2019 and insert a new section 11A, which provides a statutory period for decision-making on claims for compensation under section 14 of the SRC Act, and for requests for reconsiderations of determinations made by a claimant.

Subsection 61(1A) of the SRC Act provides that a determining authority^[3] must consider and determine a claim under section 14 of the SRC Act within the period prescribed by the regulations. Subsection 62(6) provides that a determining authority or person must also decide a request made by the claimant to reconsider a determination within the period prescribed by the regulations.

Subsections 61(1A) and 62(6) were inserted into the SRC Act in 2011^[4] in response to the ‘2008 Review of Self-Insurance Arrangement under the Comcare Scheme’, however, no regulatory timeframes have previously been prescribed. Prescribing timeframes in accordance with subsections 61(1A) and 62(6) will realise the intention of the 2011 amendments, with the introduction of prescribed timeframes supporting timely decision-making and access to workers’ compensation for injured employees.^[5]

Guidance

Initial claims for workers’ compensation made under section 14 of the SRC Act

The statutory timeframes for decision-making apply to determinations in respect of initial claims for workers’ compensation made under section 14 of the SRC Act. An ‘initial claim’ is a workers’ compensation claim for an ‘injury’^[6] that is claimed to have arisen out of, or in the course of employment; or a ‘disease’^[7] that is claimed to have been significantly contributed to by employment.

The statutory timeframes do not apply to determinations made under any other section of the SRC Act.^[1]

Requests for reconsiderations of determinations under section 38 or 62 of the SRC Act

The statutory timeframes for decision-making apply to all requests for the reconsideration of a determination made by a claimant. These timeframes do not apply to requests for reconsiderations made by employers, or reconsiderations the determining authority may make on its own motion.

Calendar day count commencement and end dates

Section 11A of the Regulations provides that the statutory timeframe count of calendar days commences on the date the determining authority receives either:

• an initial claim for workers’ compensation made in accordance with section 54 of the SRC Act, or
• a request for a reconsideration of a determination made by a claimant under section 38 or 62 of the SRC Act.

The SRC Act requires that a person make a claim before workers’ compensation entitlements may be provided. Section 54 of the SRC Act outlines the requirements for making a claim for compensation. Under subsection 54(2) and (3) a claim is made by giving the relevant authority:

• a written claim on a Comcare approved claim form;^[8] and
• a certificate by a legally qualified medical practitioner.^[9]

The calendar day that an initial claim or reconsideration request is received is day one of the calendar count regardless of whether that happens to be a business day, a Saturday, a Sunday, or a public holiday. This would mean the day following receipt of the initial claim or reconsideration request would be day two of the calendar day count.

If the calendar day count for determining liability on an initial claim or deciding a request for reconsideration made by a claimant ends on a Saturday, Sunday or a holiday in the place that the decision is being made, the decision can be made the next day that is not a Saturday, Sunday or holiday.^[10] Holiday is taken to mean a day that is a public holiday in the place where the decision is being made and also a day on which the place or particular office that the decision is being made is closed for the whole day.^[11] For example, if a decision is to be made at a particular office which is closed for the whole day during an organisation’s end of year shutdown period up to and including Wednesday, 1 January 2025, the decision may be made on Thursday, 2 January 2025.

Importantly, the Regulations do not prescribe a deemed determination or reviewable decision if a determining authority fails to meet the statutory timeframes. Determining authorities should have regard to other legislation that may enable a claimant to seek review of a determination not made within the prescribed timeframes.

Periods in which calendar days are not counted toward the timeframes for decision-making on initial claims for workers’ compensation

The new provisions also clarify that the periods prescribed for decision-making in relation to section 14 determinations do not include certain specified periods. These ‘stop-clock’ measures only apply to initial claims under section 14 and do not apply to reconsideration requests made by a claimant.

The periods in which calendar days are not counted include where:

• a determining authority requires a claimant to undergo an examination by a nominated LQMP under section 57 of the SRC Act;
• a determining authority has requested the claimant provide information or documentation under section 58 of the SRC Act;
• a determining authority requires an employer to provide information or documentation under section 71 of the SRC Act;^[13]
• a claimant has advised that they will be providing further evidence; or
• a determining authority considers it reasonable and necessary to obtain further medical evidence by requiring a report^[14] from the claimant’s LQMP or an LQMP nominated by the determining authority.

See Attachment A – Extract of the Safety, Rehabilitation and Compensation Amendment (Period for Decision-making) Regulations 2023, Schedule 1, Part 2, section 11A(3) for further detail on the periods in which calendar days are not counted.

These ‘stop-clock’ measures essentially freeze the calendar day count while waiting for the additional evidence or information requested by the determining authority, or information the claimant has advised they will be providing in support of their section 14 claim.

The calendar day count stops on the day:

• information is requested by the determining authority;
• written notice is given to the claimant to undergo an examination by a LQMP; or
• the claimant advises they will be providing further information.

The calendar day count recommences on the day after (regardless if this day is a Saturday, Sunday or public holiday):

• the requested information is received;
• the claimant and/or the employer advises that the information cannot be provided; or
• the date the determining authority reasonably believes either
  • the claimant will not provide any further evidence or the principal officer of an employer has failed to comply with a section 71 notice.

The ‘stop-clock’ measures in relation to requesting information from a claimant under section 58 of the SRC Act are intended to operate in conjunction with the ‘refuse to deal with’ provision prescribed by subsection 58(3). That is, where a claimant refuses, or fails, without reasonable excuse, to comply with a notice issued under subsection 58(1), the relevant authority may refuse to deal with the claim until the claimant gives the relevant authority the information sought. Where a ‘refuse to deal with’ under subsection 58(3) is in effect, the calendar day count in relation to making a determination under section 14 will remain paused.

Importantly, the calendar day count does not freeze when information is requested from the employee unless the request is made via a notice issued under section 58 of the SRC Act. Requests for information by the determining authority of the employee via other forms of communication do not result in the calendar day count freezing.

There are no limits on the number of times the calendar count is frozen while further evidence is sought to assist with determining liability for an initial claim for workers’ compensation under section 14. Importantly, the ‘stop clock measures’ are not to be used as a tool to delay decision-making and are only to be used where the determining authority requires further information in order to make a determination under section 14.

In cases where the calendar day count is frozen due to Comcare issuing a notice under section 71 of the SRC Act to the principal officer of an employer of the claimant, the calendar count recommences on the earlier of the following days:

• the day after the information or documents are received by the determining authority;
• the day after the determining authority receives advice that the requested information or documents cannot be provided;
• the day after the determining authority reasonably believes the principal officer has failed to comply with the notice.

It is important to note that the calendar day count does not freeze when information is requested from the employer unless the request is made via a notice issued under section 71 of the SRC Act. Requests for information by the determining authority of the employer via other methods do not result in the calendar day count freezing.

The Regulations also provide that the calendar day count which has been frozen due to the claimant advising they intend to provide further information in support of their claim will recommence on the day after the determining authority reasonably believes the requested documents or information will not be provided.

The Regulations do not contain any guidance as to the amount of time that a determining authority may consider is a reasonable amount of time for providing requested documents or information, and the time that a determining authority considers reasonable may vary for individual claims, depending on their specific circumstances. However, section 58 and 71 notices require the determining authority to provide a date on which the requested documents or information are due to be provided, which may be used as a guide.

If the statutory timeframe is paused due to a ‘stop-clock’ measure, the determining authority should keep the claimant informed of the status of the initial liability decision and the effect of further requests for information on decision-making.

As the statutory timeframes for decision-making including the ‘stop-clock’ measures are not determinations under section 60(1) of the SRC Act, the provisions are not subject to reconsideration under section 62 of the SRC Act or appeal at the Administrative Appeals Tribunal. If a claimant disagrees with a determining authority’s conduct associated with applying the statutory timeframes for decision-making, they will need to make an application to the Federal Court of Australia.^[15]

Application of the Provisions

The statutory timeframes for decision-making commence on 1 April 2024 and apply to all initial claims for workers’ compensation under section 14 of the SRC Act and all requests for the reconsideration of a determination made by a claimant under section 38 or 62 of the SRC Act received on and from 1 April 2024.

More information

For more information about the operation of the new statutory timeframes for decision-making, please contact Comcare’s Scheme Policy team on 1300 366 979 or email schemepolicyanddesign@comcare.gov.au.

Other relevant scheme guidance

• Definition of injury and disease
• Establishing whether there has been an aggravation to a pre-existing or underlying medical condition

References

[1] A determination is any decision made under one of the sections listed in section 60 of the SRC Act.

[2] Claimant means a person in respect of whom a determination is made as defined in section 60 of the SRC Act.

[3] Determining authority, in relation to a determination, means the person who made the determination as defined in section 60 of the SRC Act.

[4] Item 6 in Schedule 2 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2011, which commenced on 7 December 2011.

[5] Safety, Rehabilitation and Compensation Amendment (Period for Decision-making) Regulations 2023 – Explanatory Statement.

[6] As defined in section 5A of the SRC Act.

[7] As defined in section 5B of the SRC Act.

[8] See Scheme Guidance Relevant Authority Claim Form Approvals

[9] Exception to the requirement for a medical certificate from a legally qualified medical practitioner is where the claim is for medical treatment only under section 16 of the SRC Act or a claim in respect of the death of an employee under section 17 of the SRC Act.

[10] Subsection 36(2) of the Acts Interpretations Act 1901 (AIA).

[11] Subsection 36(3) of the AIA.

[12] A legally qualified medical practitioner (LQMP) is a general practitioner or specialist registered to practice under the Australian Health Practitioner Regulation Agency (AHPRA), see Scheme Guidance Engaging a legally qualified medical practitioner to undertake an independent medical examination under the SRC Act.

[13] The Regulations specify ‘determining authority’, however, section 71 only applies to Comcare, (see subsection 4(10) and 4(10A) of the SRC Act).

[14] The term "report” is not defined in the SRC Act or SRC Regulations, however, is defined in the Macquarie Dictionary to mean “…a statement submitted in reply to inquiry as the result of investigation, or by a person authorised to examine and bring or send information….”.

[15] A request to review a decision under a non-reviewable section of the SRC Act can be made to the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 or the Judiciary Act 1903 (Judiciary Act).

This information is for: Government sector and self-insured licensees
Document number: SRC339
Last updated: October 2024
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