Unlawful Discontinuance of Workers Compensation Weekly Payments

Foyle Legal regularly sees injured workers whose workers compensation weekly payments are stopped or reduced when the law does not allow it. Often the worker has been terminated, has resigned, or has attempted a return to work — and the payments simply stop, even though the worker is still totally or partially incapacitated for work. If this has happened to you, the sections below explain what your employer (or their insurer) was required to do under the Workers Compensation and Injury Management Act 2023 (WA) before reducing or discontinuing your payments — and what you can do if those requirements were not followed.

When Income Compensation Can Lawfully Be Reduced or Stopped

Under the Workers Compensation and Injury Management Act 2023 (WA), once liability has been accepted your income compensation cannot simply be switched off. In general, payments can only be reduced or discontinued if:

• you consent (for example, as part of a settlement); or
• the requirements of section 63 (reduction or discontinuance based on your return to work) or section 64 (reduction or discontinuance based on medical evidence) have been complied with; or
• a conciliator directs, or an arbitrator orders, that payments be suspended, reduced or discontinued.

Reduction or Discontinuance Based on Your Return to Work (Section 63)

If the reason for reducing or stopping your payments is that you have returned to work, section 63 provides that your employer must not reduce or discontinue income compensation unless it has first informed you, in accordance with the regulations, of:

1. the basis for the reduction or discontinuance, with reference to the position you have returned to; and
2. the amount, if any, of income compensation that will be paid to you for any partial incapacity for work.

If there is a dispute — for example, about whether you have in fact returned to work, or the amount you should still be paid — an arbitrator can determine those matters and make an order as to the making and amount of payments.

Reduction or Discontinuance Based on Medical Evidence (Section 64)

If the reason is medical evidence from a medical practitioner about your capacity for work, or about the extent to which your incapacity for work results from your injury, section 64 sets out requirements that must be complied with before your payments can be reduced or discontinued:

1. Your employer must give you written notice of the proposed reduction or discontinuance in accordance with the regulations, together with a copy of the medical evidence it relies on.
2. You then have 21 days to apply for resolution by conciliation of a dispute about the proposed action.
3. If you apply within that 21-day period, your payments cannot be reduced or stopped until the dispute resolution process has been finalised (for example, by the dispute being resolved at conciliation or determined by an arbitrator).
4. If you do not apply within the 21-day period, the employer is permitted to proceed.

In determining the amount of any income compensation payments, an arbitrator may assess your capacity for work and may take into account whether a return to work program has been established for you and your participation in it. A conciliator also retains the power, in a proceeding on a dispute, to direct the suspension or reduction of payments.

When a Discontinuance Is Unlawful

It is not lawful for your payments to be stopped or reduced where the process above has not been followed — for example, where payments stop:

• without the required notice or information being given to you;
• without a copy of the medical evidence relied on;
• during the 21-day period you have to apply for conciliation; or
• while your dispute is still on foot.

Being terminated or resigning does not of itself end your entitlement. Under section 49 of the Act, a worker who resumes or attempts to resume work and cannot perform or continue the work because of the injury is not prejudiced in any entitlement to compensation — see our guide to workers compensation when you stop working for an employer.

What You Can Do

If your payments have been ceased or reduced unlawfully, a dispute can be lodged with WorkCover WA’s Conciliation and Arbitration Services seeking reinstatement of your payments, including any arrears. Foyle Legal can prepare and run the application for you. If you have stopped working for an employer and payment was cancelled, or you simply need help with your initial claim, contact us today.