WorkCover conciliation – am I eligible and how does it work?

For a long time, if a WorkCover dispute did not resolve at conciliation, the only 2 options available to take a matter further would be either to Court or to a Medical Panel (for medical disputes only). This changed in April 2020 with the establishment of the Worker’s Compensation Independent Review Service (WCIRS) and in May 2021 with the establishment of the Arbitration Service.

If you’ve been injured at work and have a dispute regarding your WorkCover claim or entitlements such as:

• Rejection of your WorkCover claim;
• Partial acceptance of liability (eg. injuries claimed are back and knee, but only liability for the knee is accepted);
• The insurer takes too long to make a decision in respect of a request (ie. depending on the nature of request, a reasonable time is usually taken to be 28 days from receipt of the request);
• The insurer refuses to fund a particular request (such as a recommended medical treatment);
• The insurer has calculated your WorkCover weekly payments incorrectly;
• The insurer has terminated your entitlement to weekly payments; or
• The insurer has terminated your medical and like expenses or all entitlements,

the first step is to refer the dispute to the Accident Compensation Conciliation Service (ACCS).

For more information about the referral process and what is required, please see tour article, “What to do if your WorkCover claim is rejected”.

In April 2020, an independent review service was created by WorkSafe called the Worker’s Compensation Independent Review Service (WCIRS). This service provided an additional forum where some insurer decisions related to WorkCover claims could be reviewed if resolution was not reached at conciliation.

This service can only be accessed by:

1. the worker to whom the decision relates;
2. a nominated person or representative over the age of 18; or
3. if a worker is under 18 years old or under a legal disability, then by a guardian or representative over the age of 18.

Decisions that cannot be reviewed by WCIRS include:

• Decisions made by authorised self-insurers;
• Decisions relying on a medical panel determination;
• Matters where resolution has been reached as part of the conciliation process;
• Decisions relating to lump sum entitlements including impairment benefits claims or a serious injury applications/common law claims; and
• Decisions in relation to the death of a worker or a dependency claim.

There are certain criteria that must be met by injured workers to access services provided by WCIRS.

The following must apply:

1. The decision to be reviewed must have been made on or after 3 December 2019;
2. A Genuine Dispute certificate must have been issued by the ACCS (the conciliation service);
3. The application must be made within 2 years of the date of a Genuine Dispute certificate;
4. Prior to the Magistrates or County Court listing the dispute for final hearing or referring the dispute to a Medical Panel (if court proceedings are already on foot).

Decisions that can be reviewed by WCIRS can include:

• Decisions relating to the rejection of liability for an injury, condition or disease (including physical and psychological injuries or illnesses);
• Decisions relating to weekly payments (ie. termination, rejection, suspension or calculation of weekly payments);
• Decisions relating to medical and like expenses including decisions about provisional payments for claimed mental injury.

In order to access the services of WCIRS, an application needs to be completed. You can access the form here.

It is helpful to include any relevant and supportive information with the application. This could be medical reports, statements or financial documents (depending on the nature of the dispute).

Your application is then allocated to an independent review officer (IRO) who will review your application together with all the information on hand. The IRO may also seek further information from the insurer or injured worker to assist them to make their decision.

Ultimately, the IRO will be looking at whether the decision made is:

• fair;
• reasonable;
• based on the best available evidence;
• considered; and
• any other matters such as the prospects of the decision being upheld or overturned at Court.

The decision of the IRO is often based on a wider consideration of factors as compared to the factors that the insurer looks at when making the original decision about whether to accept or reject your WorkCover claim.

WCIRS must complete the review within 28 days of receiving the application.

Sometimes an extension of time can be sought to gather further information or if there is a high volume of applications before the service.

The IRO cannot alter a decision or make a different decision, but can either overturn a decision or uphold it.

Overturning a decision, means that the IRO has found in the injured worker’s favour. It means that the decision by the insurer cannot be maintained.

Upholding or affirming the decision, means that the IRO has found in favour of the insurer and the decision remains unchanged.

If a decision is maintained, you can take the matter further at either the Magistrates or County Court. It is crucial, if you have not already done so, that you seek legal advice and representation at this time.

This is good news as it means that you will not have to continue with your court proceedings.

It is very important to remember that if court proceedings are discontinued as the decision has been overturned at WCIRS, you may not be entitled to any legal costs from the insurer.

This is an important consideration in deciding whether you bring a WCIRS application at the same time as court proceedings or wait until the application has been finalised before proceeding to court (if necessary). An experienced worker’s compensation lawyer can assist you with this.

On 1 September 2022, a new service called arbitration will commence through the conciliation service. It will complement the existing conciliation service.

The aim of arbitration for worker’s compensation matters is to provide a quick, efficient and binding determination for disputes.

As the service has not commenced yet, the full operational details are not yet known.

What we do know:

• Workers who are injured on or after 1 September 2022 can access the service;
• Arbitration hearings must take place within 30 days of it having been referred;
• Decisions made by the arbitrator are final and binding;
• Unlike conciliation, the focus is not on the parties coming to their own agreement, but the arbitrator will make a binding determination after hearing the arguments and evidence by both sides; and
• Disputes still have to go through the conciliation process and be unresolved before making an arbitration application.

What we do not yet know:

• Whether legal representatives (for example, your lawyer) or other representatives will be permitted to participate in the process and/or attend the arbitration hearing to assist the injured worker;
• The process of appealing a decision made by an arbitrator;
• The decisions that cannot be reviewed through the arbitration service.

Given the final and binding nature of these decisions, informed consideration is required before opting to go down the arbitration road. We strongly recommend legal advice is sought before deciding on whether to proceed with an application to arbitration (once it becomes available).

More information will be available on the ACCS website from 1 September 2022.

From 1 September 2022, the name of the conciliation service will change from the Accident Compensation Conciliation Service (ACCS) to the Workplace Injury Commission. This is to reflect the expansion of the dispute resolution services to include the new arbitration service.

If you have any questions or require any advice or assistance about the appropriate forum to dispute an adverse decision be the insurer in relation to your WorkCover claim, please contact us to arrange a free initial consultation.