Notifiable and not notifiable claims - Medicare Compensation Recovery 011-15020000

A notifiable person must tell Services Australia in writing if a compensation claim for an injury or illness to a person results in a:

• Judgment or settlement, if compensation was fixed for more than $5,000 for:
• settlements (inclusive of legal costs) - go to Claims with settlement amount for legal costs only below
• judgments (excluding legal costs)
• Reimbursement arrangement, made more than 6 months after the date the compensation claim was lodged with the notifiable person

Examples:

• A settlement made for $4,600 plus legal costs of $500 = notifiable ($5,100 total compensation)
• A judgment made for $5,000 plus legal costs of $500 = not notifiable ($5,000 total compensation)
• A compensation claim made on 1 February 2022 and reimbursement arrangement made on 1 October 2022 = notifiable (8 months)

Claims with a settlement amount for legal costs only

The claim is not notifiable under the Health and Other Services (Compensation) Act 1995 (HOSC Act), if a settlement amount is:

• only the legal costs associated with pursuing the compensation claim, and
• does not include payment for the injury/illness

Evidence must be provided to the agency to confirm this, such as the:

• terms of settlement
• deed of release, or
• legal costs invoice

Note: court documents may be needed to determine the amount of damages excluding costs for some judgments.

Company name or medical practitioner

If a company name, business name or medical practitioner’s name is given as the notifiable person this can be accepted to register the claim. Some large companies are self-insured and businesses in Australia are required to hold certain types of insurance, (for example, workers' compensation insurance).

A medical practitioner is identified by the title of 'Doctor' indicated by selecting 'Dr' or included in their name field.

Individual(s)

If the notifiable person is listed as an individual(s) contact the person submitting the request to confirm the compensation payer details and/or requirement to be insured.

If the compensation payer details provided are confirmed to be correct, the claim can be registered.

Where the compensation details provided are confirmed as incorrect, the claim can be provisionally registered and a We need more information to register Z2798 letter must be issued seeking more information to register the claim.

Go to Search for or update an existing claim or register a new claim - Medicare Compensation Recovery,

Notifiable claims

Regardless of whether the notifiable person is an individual, registered business or company, a claim may be notifiable, when they are:

• insured even if not required to be, or
• not insured but are required to be

Not notifiable claims

Section 4 of the Health and Other Services (Compensation) Act 1995 defines that a claim would not be notifiable if compensation was payment by a person not insured and not required by law to be insured.

If in doubt about claims where there is no insurer involved, Service Officers should:

• register a provisional claim, if one does not already exist, and
• escalate to Program Management to determine if the claim is notifiable

Go to:

• Process page > Table 1 > Step 4
• the References page contains a link to legislation, section 4 of the Health and Other Services (Compensation) Act 1995
• Escalations and case notes - Medicare Compensation Recovery for details on escalating a claim to Program management

Loss of dependency and/or loss of consortium claims are made by a dependant or spouse of a deceased injured person due to the loss of a reasonable expectation of a benefit.

If the judgment or settlement payment is only for loss of dependency or loss of consortium, the claim is not considered to be a payment of compensation as the payment is not being made for personal injury.

Any compensation payment arising for loss of dependency or loss of consortium must be considered on its individual merits.

Notifiable claims

A loss of dependency or loss of consortium claim is notifiable when:

• any part of the settlement or judgment (separate or in conjunction with the claim for dependency or consortium) includes an amount paid that relates to compensation for injury or illness sustained by the dependant or spouse. For example, psychological injury
• the dependant or spouse pursue a claim or a continuation of a claim for the deceased person's injury or illness under the estate of the deceased

Claims that are not notifiable

A loss of dependency or loss of consortium claim is not notifiable if the payment is:

• for past and future loss of benefits and services including:
• companionship
• love
• affection
• comfort
• mutual services, or
• sexual relations
• in relation to a death benefit of the deceased spouse, including a payment to a spouse or injured person under a superannuation or life insurance policy that the recipient has contributed to

Evidence in the form of a deed of release or settlement agreement will need to be provided advising of the settlement occurring for loss of consortium. If a Service Officer is unsure if a compensation claim should be registered:

• contact a Program Support Officer (PSO) for advice, and/or
• escalate to Program Management for a decision

A compensation claim for a deceased person is notifiable to the agency in the same manner as any other compensation claim. The injured person may be:

• deceased prior to notification, or
• become deceased whilst the claim is in progress

Go to:

• Authority to access a claim - Medicare Compensation Recovery
• Search for or update an existing claim or register a new claim - Medicare Compensation Recovery

School accidents can include injuries sustained:

• on any school premises, or
• during a school excursion, or
• during approved work experience

Schools are not legally required to carry insurance for accidents. Therefore, any compensation payment arising from a school accident must be considered on its individual merits.

Note: injuries sustained by a teacher during their employment are considered to be a workers compensation claim and not a school accident.

Notifiable claims

A school accident is notifiable if:

• the school:
• is insured against the accident which gave rise to the claim, or
• has an insurance policy that covers payment for medical expenses incurred by the injured person
• the matter is a common law or public liability claim, or
• an amount of compensation has been fixed for greater than $5,000 by a judgment (excluding costs) or settlement (including costs)

Claims that are not notifiable

A school accident is not notifiable if the school:

• holds an insurance policy that:
• does not provide for any payment of medical expenses, or
• only covers payment of medical expenses which are not eligible Medicare or nursing home benefits or residential and home care subsidies
• is not insured or indemnified in respect of the injury or illness, and is not required by law to be so insured or indemnified

If a Service Officer is unsure if a compensation claim should be registered:

• contact a Program Support Officer (PSO) for advice, and/or
• escalate to Program Management for a decision

If Service Delivery or Program Management confirm the claim is not notifiable, issue a You do not need to tell us about the compensation claim/reimbursement arrangement (Z2797) letter.

Criminal injury compensation is paid by a State or Territory of Australia to victims of crime for injuries sustained because of criminal activity committed directly against them.

If a State or Territory Act specifically excludes medical costs, the claim would not be captured and is not notifiable. This applies even if an amount of compensation has been fixed for greater than $5,000 by a judgment (excluding costs) or settlement (including costs).

If the terms of the settlement are not clear, get confirmation regarding the particular State or Territory Act and escalate all documents to Program Management to determine if the case is notifiable.

If Program Management confirm the claim is not notifiable, issue a You do not need to tell us about the compensation claim/reimbursement arrangement (Z2797) letter.

The References page has a link to legislation - section 4, Health and Other Services (Compensation) Act 1995.

If it is identified that a compensation matter relates to a sporting injury, the claim is to be escalated to Program Management for further consideration.

If a Service Officer is unsure if a compensation claim should be registered:

• contact a Program Support Officer (PSO) for advice, and/or
• escalate to Program Management for a decision

If Service Delivery or Program Management confirm the claim is not notifiable, issue a You do not need to tell us about the compensation claim/reimbursement arrangement (Z2797) letter.

Wrongful deaths are usually the result of an accident caused by the misconduct of another person or company. For example, wrongful death claims are lodged for:

• malpractice (such as, professional negligence by a doctor or health care worker)
• unsafe premises
• unsafe working practices
• unsafe machinery, operations, or faulty equipment

Australian State and Territory legislation make provisions for wrongful deaths, such as, worker's compensation. Claims lodged under State or Territory legislation may also be pursued by the estate of the deceased or family members under other legislation, for example common law.

Note: Service Officers that are unsure if a claim is notifiable should:

• contact a Program Support Officer (PSO) for advice, and/or
• escalate to Program Management for a decision

Notifiable claims

Claims are notifiable if they do include or could possibly include recoverable medical services for the deceased injured person. This also applies if a family member is making or continuing the claim on behalf of the deceased person.

A claim may be lodged under both workers' compensation and common law for personal injuries sustained by either the deceased or their family members. These claims are notifiable.

Claims that are not notifiable

Wrongful death claims are not notifiable when the claim is not for personal injury. For example, the family or estate of a deceased:

• worker, who dies because of a car accident while driving a company vehicle and the vehicle is determined to be faulty. The estate may lodge a claim for wrongful death against the employer because the employer failed to maintain the vehicle in proper mechanical repair
• person, who was attacked in the car park of a shopping centre may sue the shopping centre management or owners for failing to provide adequate security in the car park

Note: a claim may also be pursued under Criminal Injury Compensation as well as wrongful death.

If a Service Officer is unsure if a compensation claim should be registered:

• contact a Program Support Officer (PSO) for advice, and/ or
• escalate to Program Management for a decision

An ex-gratia payment is made voluntarily, out of kindness or grace and there is no obligation or legal liability for the giver to pay compensation.

Examples of ex-gratia payments include payments from government organisations such as the:

• Australian Government’s Redress Scheme. Established to provide monetary compensation, psychological counselling, and other forms of support to survivors of institutional sexual abuse in Australia, or
• Victorian Government’s Bushfire Support Fund. Established to provide ex gratia payments to individuals and communities affected by the 2020 bushfires to cover the cost of urgent needs such as clothing, food, and accommodation

A true ex-gratia payment does not extinguish the injured person’s legal right to claim compensation from the party who makes the payment. Generally, the injured person does not have to sign a document that waives their rights to claim compensation in the future.

A claim is notifiable under the HOSC Act and must be registered in MCRS if any legal documents were signed by the injured person, which releases the compensation payer from liability to make future payments. This is not an ex-gratia payment. The documents can include:

• deed of release
• settlement agreement
• deed of settlement

If a Service Officer is unsure if a compensation claim should be registered,

• contact a Program Support Officer(PSO), and/or
• escalate to Program Management

Victorian legislation

A judgment or settlement for $5,000 or more is not compensation if the payment was made on or before 30 June 2006 under Subdivision 1, 2 or 3 of Division 3A of Part IV of the Accident Compensation Act 1985 (Vic) which includes the:

• Transport Accident Act 1986
• Workplace Injury Rehabilitation and Compensation Act 2013, and
• Accident Compensation Act 1985

If it is identified that a compensation settlement relates to a payment of this kind, escalate the case to Program Management for further consideration.

All other States and Territories

State and Territory workers compensation schemes can specifically preclude the payment of any medical benefits in relation to an injury or illness under claims made for incapacity.

If it is identified that a compensation settlement relates to a workers compensation incapacity payment and there is uncertainty around if the claim is notifiable:

• contact a Program Support Officer (PSO) for advice, and/or
• escalate the claim to Program Management for a decision

A claim is notifiable under the HOSC Act if all or part of the amount of compensation is part of a redemption of an entitlement to compensation by periodic payments. A worker can agree to give up their ongoing entitlement to weekly payments and medical expenses in exchange for a lump sum payment (compensation). This is different to a lump sum payment for permanent impairment.

However, the claim is not notifiable if the law prohibits:

• redemption of future medical and care expenses
• inclusion of past medical and care expenses

For example, a settlement that is a redemption of an entitlement to periodic payments made under section 30 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) would not be notifiable under the HOSC Act.

See Resources for examples of when payments under the SRC Act are notifiable or not notifiable.

Medicare record not found

If a Medicare record cannot be found, this may mean that the injured person:

• was enrolled in Medicare under a different name and/or date of birth:
• make sure the name and date of birth details are re-confirmed with the customer that submitted the information, and check MCRS again
• go to Search for or update an existing claim or register a new claim
• is not enrolled in Medicare, for example:
• their birth in Australia may not have been registered and they have never attempted to access Medicare entitlements, or
• they may be a non-resident from overseas who is not eligible for Medicare enrolment

Go to Search for or update an existing claim or register a new claim – Medicare Compensation Recovery

Medicare record not found for claim when compensation has been fixed

• If an amount of compensation has been fixed for greater than $5,000 by a judgment (excluding costs), or settlement (including costs), it is not notifiable if the injured person is not eligible to receive:
• Medicare benefits, as the injured person does not hold a Medicare card, unless there are recoverable care costs
• If residential or home care services were provided to treat the injury/illness where there were no Medicare services:
• register a claim in MCRS to issue the care services statement
• Go to Search for or update an existing claim or register a new claim – Medicare Compensation Recovery

Note: Reciprocal Health Care Agreements (RHCA) exist between Australia and other countries to provide immediate necessary medical treatment during a temporary visit. To access out of hospital Medicare services:

• visitors to Australia must enrol in Medicare and may become entitled to receive benefits, and
• Australian residents overseas must enrol in that country’s health care program to become entitled and receive eligible benefits there

Compensation recipient is liable to repay regardless of location

A person who has received a notifiable compensation payment must repay the Australian Government amounts paid for Medicare benefits and care costs that were related to the compensated injury or illness.

If a judgment, settlement or reimbursement arrangement was made, Medicare benefits and care costs must be recovered even if the:

• compensation is payable by a compensation payer located overseas
• judgment or settlement or reimbursement arrangement is made overseas
• compensable injury or illness occurred overseas

Australian jurisdiction

The Australian Government is limited in its legal ability to exercise authority beyond its normal borders in other countries. Australian jurisdiction covers all States and Territories including:

• the Australian Antarctic Territory
• the Jervis Bay Territory
• Christmas Island
• Cocos (Keeling) Islands
• Heard and McDonald Islands
• Norfolk Island
• Coral Sea Islands
• Ashmore and Cartier Islands

When the agency receives the judgment, settlement, or reimbursement arrangement documents, it will decide if the compensation claim is notifiable under Australian law and the HOSC Act. Only Australian courts or compensation authorities for the purposes of the HOSC Act (or overseas equivalents of courts) can make a judgment. For example, Comcare is not a ‘compensation authority’ for the purposes of the Act.

Shortfalls payable by the injured person or claimant

The agency cannot enforce the recovery of any amounts owed if a compensation payer is located outside of Australian jurisdiction if the injury or illness occurred overseas. They are not subject to Australian law and are not required to notify the agency of a compensation claim.

However, if the overseas compensation payer pays any amount toward a notice of charge, or if an advance payment is made, any shortfall in the amount owed may be pursued by the agency from the injured person.

Each compensation claim must be assessed on a case by case basis. If a Service Officer is unsure if a compensation claim should be registered:

• contact a Program Support Officer (PSO), and/ or
• escalate the claim to Program Management.

The References page contains a link to legislation, section 7 and 8 of the Health and Other Services (Compensation) Act 1995.

Medical negligence claims are generally due to a:

• delay in diagnosis of an injury or illness
• failed or negligent medical procedure

Recoverable services under a medical negligence claim should:

• not include the failed or negligent medical procedure
• not include the service that eventually diagnosed the injury or illness, in the case of a delayed diagnosis
• include subsequent corrective services resulting from the failed or negligent procedure or the delay in diagnosis

The Transport Accident Commission (TAC) is a Victorian Government owned organisation that will pay all reasonable medical treatment costs, above a certain threshold, for personal injuries sustained in a transport accident in Victoria.

It is a no-fault scheme, and medical benefits will be paid to an injured person regardless of who caused the accident.

A claim against the TAC can also be made if a Victorian resident or person is injured in an interstate accident that involves a Victorian registered vehicle.

If the injured person lives in:

• Victoria and the accident happened in Victoria, the claim is likely to be Medical Excess only and the agency does not process or register these claims
• Any other Australian State or Territory, the claim is likely to be proceeding under common law.
  Note: common law claims must be registered as they are governed under different legislation to Victoria for motor vehicle accident claims.

Notifiable claims

A claim against the TAC is notifiable if:

• an amount of compensation has been fixed for more than $5,000 by a judgment (excluding costs) or settlement (including costs)
• the injured person lives outside of Victoria, and it is an interstate claim involving the TAC

Claims that are not notifiable

A claim against the TAC is not notifiable if:

• the injured person lives in Victoria and the accident happened in Victoria. These are generally Medical Excess claims that do not proceed to judgment or settlement
• the claim is subject to a reimbursement arrangement made within 6 months from the date the injured person lodged the claim

The Resources page contains links to the TAC website and information, to help Service Officers in determining if a TAC case is required to be registered.

Managing TAC telephone enquiries/processing

If a TAC claim is registered on the Medicare National Compensation Recovery Information (NCRI) mainframe screen, any patient claims presented for payment are flagged with a return message and are unable to be processed until the Service Officer (whether in a branch office or on-line claims) contacts Medicare Compensation Recovery.

Go to Enquiries and authenticating a customer for all TAC related telephone enquiries. Medicare staff handling TAC enquiries call Medicare Compensation Recovery > General for help.