NSW Workers Compensation: What is a Section 78 Notice and what should I do?

Pursuant to Section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), the insurer must give written notice to the claimant if the insurer has made the decision to dispute liability in respect of a claim (fully disputed or any aspect of the claim), or to discontinue or reduce the amount of weekly benefits of the claimant. This written notice is commonly known as the “Section 78 Notice”.

Hence, when you receive that phone call from the insurer informing you that they are disputing liability for your claim, the first thing you should do is ask the insurer to put the decision in writing and have it emailed to you (or posted to you if you don’t have access to an email) as soon as possible, then you should contact a lawyer immediately for legal advice.

The Section 78 Notice must include the decision, the date of the decision and the date the decision comes into effect. It must also provide general information about your review rights and who you can seek legal advice from.

They have accepted my claim, but now saying they won’t pay for surgery, why?

This is not uncommon. In fact, from our experience, in a lot of claims the insurer will dispute a surgery request in the first instance. To approve surgery, the insurer will need to be convinced that the surgery is reasonably necessary.  

It is normal protocol that the insurer will need to be provided with a lot of medical information answering why the proposed surgery is reasonably necessary before approving, and sometimes, your doctors just don’t have the time to provide reports after reports.  

You do not need to panic; a Section 78 Notice is not the final determination of a surgery request.   

If you have received a Section 78 Notice in relation to a surgery request, we strongly recommend that you contact Littles Lawyers immediately so we can review the notice and provide you with comprehensive advice and/or obtain further medical information to challenge the insurer’s decision on your behalf.  

The further medical evidence may include a complete copy of your clinical notes and medical records from your treating GP, specialist and allied health providers, a medical report from your GP and the specialist who proposed the surgery, and an Independent Medical Examination with a doctor who is the correct specialty and possess the right expertise to comment on why the proposed surgery is reasonably necessary.  

I don’t have money to retain your legal services as I have been unable to work for the last year due to my injury. What can I do?

You do not need to worry about paying our legal fees. Here at Littles Lawyers, we can apply for a grant of funding to help you pay for your legal fees and any associated disbursement fees. This means, if the grant is approved, you can access our legal services for any statutory workers compensation benefits at absolutely no costs to you.  

Our Head of NSW Claims, Jessica Cheung is an approved lawyer with the Independent Legal Assistance and Review Service (ILARS) scheme. The ILARS scheme is managed by the Independent Review Office (IRO), established under the Personal Injury Commission Act. We are therefore qualified to apply for an ILARS grant of funding on your behalf.  

If IRO approves your ILARS grant application, then on top of paying for your legal fees, they will also pay for your disbursements. Disbursements are expenses incurred by a Lawyer in relation to a claim for compensation. This may include clinical notes, medical records, medical reports from your treating doctors, records from physiotherapists, and independent medical examination reports.  

Therefore, you can access and retain our legal services to assist you to challenge and overturn the insurer’s Section 78 Notice with no cost payable by you.  

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