Published: 06 May 2020
Author: Stringer Clark WorkCover Law team

New Workers Compensation dispute resolution body announced

WorkSafe has recently introduced a new agency called the Workers Compensation Independent Review Service in response to the investigation and report by the Victorian Ombudsman into the management of complex workers compensation claims.

This is a new service that serves as an additional layer of review that a worker may apply for when an impactful decision is made by a WorkCover insurer.

The old process

Previously when a decision was made by a WorkCover insurer, a worker could apply to the Accident Compensation Conciliation Service (ACCS) for review of the decision. If the decision was not modified or overturned at conciliation the worker would be provided with either a referral to a medical panel (if there were medical questions involved) for a certificate that allows them to pursue the matter further in the Magistrates’ Court.

The new process

Conciliation is still the first step in disputing a decision from the WorkCover insurer. However, there is now the additional option of having the Workers Compensation Independent Review Service assess and review a decision before having to go to Court or even while proceedings are on foot in Court.

As this is a new service, we will be taking a wait-and-see approach as to how effective it may be and whether it will be a good fit for our clients. In all cases that are appropriate to proceed to a Court hearing, we intend to issue Court proceedings, whether or not we believe the Review Service process could be of use.

Here are some of the key points from the recent announcement:

1. The decision must have been through the conciliation process with the ACCS and a genuine dispute outcome certificate must have been issued to be eligible to be reviewed;
2. The request to the Independent Review Service must be made within two years of the genuine dispute outcome certificate being issued;
3. If Court proceedings have been issued the request must be made prior to the matter being listed for a final hearing date or prior to a referral of a medical question to the medical panel;
4. Certain matters are not able to be reviewed, such as the degree of impairment in an impairment lump sum claim, disputes relating to the death of the worker or their dependents, where there has been a final Medical Panel determination or a settlement agreement between WorkCover and the worker, decisions made by self-insurers (for example Woolworths or BHP) or those relating to common law damages claims.
5. There are no costs payable to a successful applicant to the Workers Compensation Independent Review Service; and
6. A worker can have the assistance of a friend or family member, WorkCover assist, union assist their union directly or a solicitor.

Possible outcomes of Workers Compensation Independent Review Service

The independent review services job is to assess whether the decision that has been made is "sustainable". There are numerous factors that will be taken into account by the service when assessing whether a decision is sustainable. If the decision is considered to not be sustainable, then the insurer will be ordered to overturn the decision, which is then considered to be cancelled and not have any further effect.

If the decision altered or terminated someone's entitlement to weekly payments or medical and like expenses, then the insurer must within two business days restore that payment or service. If the decision related to a rejection of liability for a claim the insurer will have two days to recommence providing a new decision in accordance with the findings of the review.

We see this service overall as a benefit to the injured workers. It provides a free and accessible avenue to workers to have decisions reviewed where the conciliation process has failed. Sometimes decisions made by insurers while wrong, are not able to be taken to Court due to financial constraints. The review service provides a further option. It will also allow matters that clearly should have been overturned at conciliation but were not, and are now proceeding to Court, to have a chance of earlier settlement.