Partner, Moray & Agnew
Having practised in insurance law for almost 20 years, Daniel has extensive expertise in workers’ compensation and common law actions. He has particular experience appearing as Counsel at WorkCover WA and in the District Court of Western Australia. Daniel is focused on representing the best interests of clients at hearing or by negotiating a commercial outcome. Daniel has worked with LGIS and local government members for over a decade and understands the issues that matter to the sector.
Deferring a decision on liability is useful as it can allow further information to be gathered in relation to a claim. Below, we explore why liability decisions on claims might be deferred, the significance of the information gathered while a decision is deferred, and provisional payments of compensation.
Why defer a decision on liability?
As soon as a workers’ compensation claim is received, the clock starts ticking. The Workers Compensation and Injury Management Act 2023 (‘the Act’) and the Workers Compensation and Injury Management Regulations 2024 provide the following timeframes:
Congratulations to the Shire of Yilgarn who were award their Tier 3 Silver diligence in Safety Award. James Sheridan, CEO LGIS and Christ Gilmour, Risk Specialist – Regional visited the Shire on Tuesday 26 February to meet the Yilgarn team and present the award.
Stopping income compensation payments can be a tricky matter for LGIS members to determine. We’re aware there’s a growing number of local governments that have stopped payment when they shouldn’t have, leading to a large back pay bill and potential $10,000 fine from WorkCover WA.
Stopping income compensation payments can be a tricky matter for LGIS members to determine. We’re aware there’s a growing number of local governments that have stopped payment when they shouldn’t have, leading to a large back pay bill and potential $10,000 fine from WorkCover WA.
Sometimes, there is not enough information or evidence provided with the claim to allow either an acceptance or declinature of liability within 14 days. In those circumstances, deferring a decision on liability allows an insurer or self-insurer to collect more evidence which may assist in deciding whether liability should be accepted or declined. Evidence gathering is important to support an eventual decision on liability when it is made and becomes useful if the claim later becomes the subject of a WorkCover dispute.
For example, a decision on liability may be deferred for the following reasons:
Most commonly, the further evidence sought whilst a liability decision is deferred could take the form of clinical records from the worker’s treating practitioners, expert medical reports, or factual evidence. Whilst the length of time it takes to obtain all the required evidence depends on each claim; most evidence can be obtained prior to the deemed acceptance day.
Some information obtained during the evidence gathering process might be confidential, or the subject of legal professional privilege. Legal professional privilege applies to communications or documentation for the dominant purpose of seeking legal advice, or for use in current or anticipated litigation. This could include communications with a lawyer or law firm, legal advice or some pieces of factual evidence such as witness statements.
Although privilege may be ‘waived’ (by providing the information or documentation to a third party), it is best to obtain legal advice about the best course of action in relation to privileged evidence. If privileged evidence is released to third parties, they may use that information for unintended purposes. Maintaining legal professional privilege is also important to enable openness in communications between a lawyer and their client and encourages witnesses to cooperate with investigations.
From 1 July 2024, an individual who lodges a workers’ compensation claim may be entitled to provisional payments of income compensation and medical expenses if a decision on liability has not been made within the 28 days after a claim is received.
The provisional payments made are those which the worker would have been entitled to if their claim had been accepted. They are paid at the same time and in the same manner as usual payments of income compensation and medical expenses compensation. For provisional payments of medical expenses, workers are entitled to up to 5% of the medical expenses general limit applicable at the time.
A failure to make a provisional payment is an offence under Section 36 and attracts a $10,000.00 fine.
The provisional payments day (along with the other time limits discussed above) encourages insurers and self-insurers to make quick liability decisions and provides faster access to financial support for workers when claims are investigated for longer periods. Provisional payments do not mean that a claim has been accepted – a worker will no longer be entitled to provisional payments if liability for their claim is subsequently declined.
Claims should not be accepted just because it is likely that a worker will receive provisional payments anyway – provisional payments provide financial relief for workers and allow time for further investigations to be undertaken so that informed decisions regarding liability can be made.
This year marks the significant milestone of the 30th anniversary of LGIS. It’s an opportunity to reflect on the remarkable journey we have undertaken together over the past three decades. Since our founding in 1995, LGIS has evolved from a practical response to emerging risks into a pioneering mutual scheme that proudly serves the diverse needs of Western Australia’s local governments.
1 July 2025 marked an historic moment for LGIS, on the same day 30 years ago that the Scheme launched. A lot has changed over that time, but the core purpose remains – local governments working together through a mutual to protect their people, organisations and communities.
Research from the BMC Public Health Journal conducted in 2024 indicated that 61.75% of truck drivers develop some form of musculoskeletal disorder (MSD) during their career. This alarming statistic will almost certainly be applicable to the wide range of roles undertaken by the local government sector throughout WA.
