Published: 18 October 2017
WorkCover conciliation and the courts
What courses of action are available to me at conciliation? Do I always have to go to court?
In short there are 4 courses of action for an injured worker to take at conciliation; however, some are not appropriate in many circumstances:
- Withdraw the request for conciliation;
- Accept a limited offer from the insurer/self-insurer to resolve the dispute (if a limited offer is made);
- Refer the dispute to a Medical Panel for final and binding determination; or
- Seek the issue of a genuine dispute certificate.
Withdrawing a request for conciliation is very rarely a recommendable option. Arguably once a worker withdraws a request for conciliation, they cannot then seek to make any further requests for conciliation in respect of the same dispute (there may be many disputes under the one claim number). In other words, you only get ‘one crack at it’ and, if in doubt, you should always seek legal advice early.
Accepting a limited offer from the insurer/self-insurer is also a rarely recommendable option. Sometimes, the insurer will make an offer of a limited period of benefits (whether weekly payments of compensation, medical and like expenses, or both). If the limited period is accepted, it then becomes very difficult (if not, impossible in many cases) for the worker to revisit the decision or dispute, the subject of the request for conciliation. If a worker wishes to ‘re-open’ the dispute, the worker bears the burden of proving that the circumstances surrounding the worker’s claimed injuries have significantly changed since making the decision. In other words: if at the time of accepting a limited period of entitlements your prospects of returning to work in your pre-injury role were high, but for some reason since making that decision your condition significantly deteriorated for reasons beyond you and your doctors’ foresight and control, it may only then be possible to revisit that dispute.
Medical panels and the conciliation process
A worker may refer a dispute to a Medical Panel if the dispute concerns a ‘medical question’. Such questions may include (amongst many others):
- Whether a worker’s employment remains a materially contributing factor to the worker’s injuries if they already had some degeneration or injury to that particular body part;
- Whether the worker has a current work capacity; and
- What medical expenses are considered ‘reasonable’ and in accordance with the WorkCover legislation.
A worker cannot refer a dispute to a Medical Panel from conciliation if there is any factual dispute between the worker and the insurer/self-insurer. Usually, these would arise in circumstances of a rejected claim.
A Medical Panel opinion and reasons is final and binding on all parties. A worker may only appeal the decision to the Supreme Court of Victoria on a question of law (for example, if the worker has been denied procedural fairness). Medical Panel examiners are picked by the Convenor of Medical Panels from a pool of qualified examiners; neither us lawyers, nor the insurer knows who is going to be examining the worker until the appointment(s) for the examination(s) are made. This is why their opinions are given such weight by Courts and the legislation – Medical Panels are about as independent as you get.
In many (not all) cases, it’s in the worker’s interests to be asking the conciliation officer to issue a ‘genuine dispute certificate’, which certifies that all reasonable steps have been taken to resolve the dispute, which remains unresolved. The certificate then entitles a worker to apply to a Magistrates’ Court and asking the Court to review the dispute in accordance with the WorkCover legislation. We always recommend solicitors when going down this path.
Our advice to injured workers who are unsure of the process is to request the assistance of WorkCover Assist or Union Assist (if you are a union member) at the conciliation conference; this can be done on the request for conciliation forms. We also recommend getting legal advice at an early stage, so that a strategy for your case can be worked out at the earliest stage and ensure you are taking the right course of action in your specific set of circumstances.