When does a WorkCover dispute end up in the Magistrates Court?

Broadly speaking, worker’s compensation matters that are referred to the Magistrates Court of Victoria are any adverse decisions made by the WorkCover insurer in relation to your entitlements to WorkCover weekly payments and medical expenses where there has been a genuine dispute certificate issued.

Adverse decisions relating to entitlements to WorkCover weekly payments and medical expenses can include (but are not limited to) the following:

• Decision to reject liability for a claim;
• Decision to terminate weekly payments prior to 130 weeks;
• Decision to terminate weekly payments post 130 weeks;
• Decision to reject payment for medical treatment.

A decision to reject liability for a claim can be made by a WorkCover insurer in circumstances where there is insufficient evidence about your injury. For example, there is inadequate medical evidence about the nature of your injury or connection with your employment.

A decision to terminate weekly payments prior to 130 weeks can be made by a WorkCover insurer in circumstances where there is evidence that you do have current work capacity and are able to work (in some capacity).

A decision to terminate weekly payments post 130 weeks can be made by a WorkCover insurer in circumstances where there is evidence that you have a current work capacity for suitable employment. You can learn more detail in our earlier blog, “WorkCover weekly payments after 130 weeks”.

A decision to reject payment for medical treatment can be made by a WorkCover insurer in circumstances where they do not consider the medical treatment sought to be reasonable and necessary for the treatment of your injury.

Before a matter can be referred to the Magistrates Court, you must obtain a genuine dispute certificate through conciliation at the Workplace Injury Commission. A genuine dispute certificate must be issued by the conciliation officer only after reasonable attempts have been made by the worker and the WorkCover insurer to resolve the issues in dispute.

Once a WorkCover genuine dispute certificate has been issued, it allows you to issue court proceedings in the Magistrates Court.

Prepare and file a statement of claim– A statement of claim is a document usually prepared by your lawyer that summarises the injured worker’s case – details of the injury and how it occurred, and the remedy/relief sought.

Serve the statement of claim on WorkSafe

The court will allocate a date for a Directions Hearing – A Directions Hearing is a procedural hearing where the court is informed of the direction that the case is taking; for example, a hearing date is sought, an early neutral evaluation is sought, or a medical panel referral is sought. Usually, you are not required to attend a Directions Hearing.

If the matter is going to a full hearing – a date will be fixed in about 6 to 8 months’ time depending on the availability and capacity of the court.

If early neutral evaluation is requested – this is a form of alternative dispute resolution (a type of mediation) where there is an opportunity for the parties to discuss the matter and attempt to resolve the issues in dispute before  the need to go to a hearing which is usually more stressful for injured workers, more time consuming and more costly if the worker is unsuccessful.

If referral to the medical panel is requested – this is available in circumstances where there is a medical question – for example, is this medical treatment required for the work-related injury and/or is it reasonable and necessary. You can learn more about WorkCover medical panels in our blog, “The Role of Medical Panels in Workers’ Compensation Claims”.

No.

Once you have the genuine dispute certificate (obtained at WorkCover conciliation), there is no specific time limit to refer a dispute to the Magistrates Court.

You are required to attend the Magistrates Court if your WorkCover matter is listed for a full hearing. You should attend with your lawyer.

At the hearing:

• representatives/lawyers for each party (the plaintiff, being the injured worker and the defendant, being the employer) will make opening submissions;
• you will be called to give evidence – your lawyer will ask you questions about the circumstances of your injury;
• the other side will have an opportunity to cross-examine you;
• both parties have an opportunity to make further submissions, including calling more witnesses like doctors, medical specialists, case managers, co-workers etc.;
• once the hearing has concluded, the Magistrate will make a decision which will be conveyed to the parties, usually at a later date.

Possible outcomes of a Magistrates Court hearing for a WorkCover dispute include the following:

• WorkCover insurer found liable, and compensation for weekly payments and medical expenses ordered;
• Declaration that the adverse decision, made by the WorkCover insurer, be set aside and revoked;
• Declaration that a person is entitled to WorkCover weekly payments and medical expenses;
• Declaration that liability be accepted;
• Order for costs (which can be against the injured worker or the defendant, depending on the decision);
• Order for interest to be paid to the injured worker (due to delay in receiving compensation caused by pursuing the matter at court).

A Magistrates Court decision is binding on all parties.

If a party is not satisfied with the outcome of the Magistrates court proceeding, they have the right to appeal the judgement. However, an appeal can only be made on the basis that the magistrate made a legal error in reaching the judgement.

There is a strict 30-day time limit from the date of the Magistrates Court order to file an appeal with the Supreme Court of Victoria. A request for appeal is not automatically accepted. It must be reviewed and considered by the Supreme Court and permission (also known as leave) must be provided to pursue the appeal.

There are two other avenues to review an adverse WorkCover decision:

• Worker’s Compensation Independent Review Service (WCIRS); and
• Arbitration.

The Workers Compensation Independent Review Service (WCIRS) was established in 2020 in response to rising complaints about adverse decisions being made by Workcover insurers. Decisions made by a WorkCover insurer can be contested and reviewed by the WCIRS after a conciliation where a genuine dispute certificate (GD) has been issued.

You have 30 days from the date of your genuine dispute certificate to appeal your matter to the WCIRS. If you are not satisfied with the decision of the WCIRS, you can still appeal your matter to the Magistrates Court.

Arbitration is an alternative dispute resolution option (a type of mediation) for injured workers to refer a WorkCover dispute that has not resolved at conciliation and where a genuine dispute certificate has been issued. ; The purpose of the arbitration process is to expedite a final decision for the injured worker without the need to take a matter to court, which can be stressful and time-consuming.

Before a referral can be made for arbitration, there is a specific set of eligibility criteria that must be met:

• Injury must have been sustained from 1 September 2022 onwards;
• A genuine dispute certificate was issued no later than 60 days before referral to arbitration;
• An application has not been made to the Magistrates Court for determination.

Decisions made at arbitration are final and binding, and there are limited appeal rights. You can only appeal a decision to the Supreme Court of Victoria in the event that there is a legal error.

Although WorkCover matters generally go to the Magistrates Court if they are related to weekly payments or medical treatment disputes, the outcome of a Magistrates Court decision can have an impact on WorkCover lump sum claims.

If the outcome of the Magistrates Court hearing is an acceptance of liability, then the injured worker will be entitled to make an impairment benefit claim for lump sum compensation if they meet the required criteria for such a claim.

Also, if the Magistrates Court matter proceeded to a full hearing, the evidence provided in the proceeding can affect a person’s chances of success in a common law claim (a lump-sum payment to compensate you for loss following a workplace injury that has been caused by the negligence of another person or entity).

Deciding whether to refer a WorkCover dispute to the Magistrates Court or not is a decision that should not be taken lightly. Aside from the time it takes to resolve a court proceeding, there are risks and consequences to this decision that can affect other worker’s compensation entitlements. It is recommended that before making this decision you speak with lawyer experienced in WorkCover claims in Victoria.