Arbitration: the alternative dispute process for WorkCover disputes

In 2022, a new process was established to assist in the expeditious resolution of the ever-growing number of WorkCover disputes in Victoria. The new process was designed to be an easier and faster way for workers to resolve their dispute with the WorkCover insurer without the need to go to court. The arbitration decision would be final and binding on all parties.

In order to refer a dispute to arbitration, the following criteria must be met:

1. The injury must have been sustained on or after 1 September 2022;
2. A genuine dispute certificate has been issued through the conciliation process;
3. The genuine dispute certificate must be no more than 60 days at the time of lodgement of the arbitration request;
4. No court proceeding has been issued in the matter.

You can learn more about the conciliation process in our earlier blog, “WorkCover conciliation – am I eligible and how does it work?”

The decisions that can be arbitrated relate to:

• weekly payments;
• medical and like expenses;
• superannuation contributions; and
• interest on any outstanding amount.

There are proposed changes to limit the decisions that can be arbitrated in WorkCover matters to exclude initial liability decisions; for example, where an insurer rejects a claim because a person is not a worker at the time of the injury. Further details can be found below.

Decisions that cannot be referred for arbitration consideration those relating to:

• impairment benefits (lump sum claims);
• medical panel decisions;
• WorkCover common law;
• provisional payments;
• return to work arrangements; and
• access to information requests

Yes. Decisions of a worker’s compensation self-insurer can be referred to arbitration in the same way that any WorkCover insurer decision can.

To apply for arbitration, you must:

1. complete and sign the referral for arbitration form, which you can download here;
2. provide a copy of the genuine dispute certificate issued at conciliation; and
3. email to [email protected], or by post to GPO BOX 251, Melbourne or deliver in person to Level 1, 215 Spring Street, Melbourne.

It is recommended that you also enclose a copy of the decision notice subject of the dispute and any documents that were provided by you through the conciliation process.

Like the conciliation process, an injured worker is not entitled to be represented by a lawyer at the arbitration hearing unless this is agreed to by the Workplace Injury Commission. The Workplace Injury Commission is a Victorian Government authority that provides injured workers and their employer with easy access to independent and impartial services to resolve their dispute.

An injured worker is entitled to have free representation by non-legal representatives, such as a union, Union Assist or WorkCover Assist, a legal guardian or an employer association representative or self-insurer association representative.

Yes, you can have a support person at the arbitration however that support person can only provide passive assistance. This means they cannot be involved in the discussions or talk on your behalf at the hearing.

Once a referral is made for arbitration it is reviewed by the Workplace Injury Commission.

An arbitration hearing will then be allocated within 30 days from the date of the referral and a decision must be reached by the arbitration within 60 days from the date of the initial hearing.

If there was an adjournment or if the matter is referred to the medical panel before determination by the arbitrator, or further information is requested, this time frame will only continue once these matters have been completed.

The arbitration process can either make a decision based on the written evidence on the matter, or request a court-hearing-like process be conducted where the parties are required to give evidence.

Once the arbitration process has made a decision, it will:

• issue a determination certificate within 14 days of the conclusion of the final arbitration hearing;
• confirm the terms of the determination (the decision);
• advise the reasons for the determination;
• confirm any conditions of the determination;
• certify that each party is bound by the termination; and
• advise when the determination comes into effect.

A copy of the determination certificate will be provided to all parties involved.

The parties can also come to an agreement on issues in dispute at any time before the arbitration process is concluded and prior to a determination certificate being provided.

Yes, your employer is permitted to attend arbitration.

It is possible that your employer may be present at the arbitration. It is up to the WorkCover insurer to confirm this attendance. You can inquire from the WorkCover insurer if you wish to know for sure whether or not your employer will be present.

Yes.

The arbitration determinations are limited to 52 weeks of weekly payments and $20,000 in medical like expenses. If your dispute is likely to have a higher claimed amount, then it may not be financially feasible to go through arbitration and rather, you may be better going through the court process.

A party has 28 days from the arbitration determination to appeal a question of law to the Supreme Court of Victoria.

A question of law refers to whether the decision made by the arbitration was, for example:

• made within its authority allowed by law;
• whether you are afforded procedural fairness in the process (that is, if the medical panel made a decision without giving you the opportunity to be examined, or to explain your circumstances at the examination); and
• whether there has been any jurisdictional error made.

Question of law does not refer to the merits of the decision. That is, you cannot appeal a decision simply because you do not agree with it.

The arbitration process in WorkCover disputes is new and developing. There is no doubt that the expeditious nature of the process will benefit injured workers, but we remain sceptical about the effectiveness of having a final and binding decision without the unlimited assistance of lawyers in the process.

There is a current bill before Parliament to change the types of decisions that arbitration can determine. The bill is the Workplace Injury Rehabilitation Compensation Amendment (Workplace Scheme Modernization) Bill 2023.

It is proposed that initial eligibility disputes relating to liability for a claim can no longer be referred to arbitration and must be referred to court. Initial eligibility disputes are where the WorkCover insurer rejects a claim on the basis that the person was not a worker at the time of the injury, or that the injury is not related to employment.

We continue to monitor the space and will continue to consider how it can best be used to assist our clients.

If you have a WorkCover dispute and are considering arbitration, we always recommend you obtain legal advice before referring your matter to arbitration. Please contact Polaris lawyers to speak with one of our expert lawyers.