In our latest blog post, Ai Group's workers' compensation expert, Tracey Browne, discusses recent changes to the dispute management process for claims in Victoria and the introduction of the Workers Compensation Independent Review Service
The Victorian Ombudsman has undertaken two reviews of the way WorkSafe Agents manage complex claims. If you are interested in the detail, the reports can be found at 2016and 2019.
In the 2019 report, handed down on 3 December 2019, one of the recommendations was:
Establish a dedicated business unit to independently review disputed decisions when required by workers following an unsuccessful conciliation.
Subsequently, the Workers Compensation Independent Review Service (WCIRS) was established on 30 April 2020. The WCIRS has a role in reviewing the decisions of the Agents engaged by WorkSafe Victoria to manage claims on their behalf. It does not review decisions made by licensed self-insurers.
The Accident Compensation Conciliation Service (ACCS) is the key non-adversarial dispute resolution process for workers who are dissatisfied with an adverse decision made about their claim, including: liability decisions (rejecting a claim), termination of weekly compensation; and not approving payment for medical and like expenses.
When a worker makes an application to the ACCS the parties to the dispute are the worker and the WorkSafe Agent that made the decision. An employer has the ability to participate in a Conciliation Conference and should do so if there is a question of fact about the circumstances of an injury or the worker’s cooperation with rehabilitation or return to work.
In these situations, the employer has a valuable contribution to make as to the facts of the cause of injury or the efforts the employer has made to provide opportunities to return to work. If the dispute is about a medical opinion, including the worker’s level of capacity, there is not much that the employer can contribute, but being involved can provide insight into the reason for decisions that are made at conciliation.
Conciliators will generally try to bring the parties to an agreement, which may include the Agent deciding to accept the claim or to pay compensation for a fixed period without admitting liability. In some situations, where the Conciliator believes the Agent’s decision was untenable, they can direct the Agent to make payments.
If the Conciliator believes that the Agent’s adverse decision is sustainable, they will issue a Genuine Dispute (GD) Certificate. The issuing of this Certificate enables the worker to take their dispute to court.
Prior to 30 April 2020, once a GD Certificate was issued the only option a worker had to seek further consideration of their claim was to commence legal action. If legal action is commenced, the Agent (or lawyers on their behalf) may ultimately negotiate a settlement outcome “on the steps of the court” or the case may proceed to court.
A worker who receives a GD Certificate can now make an application to the WCIRS to undertake an “impartial review” of certain reviewable decisions, that relate to:
The WCIRS only applies to a decision made by the Agent on or after 3 December 2019; this date was selected because it aligns with the date of the 2019 Report of the Ombudsman.
An application must be made within 2 years of the GD Certificate being issued. The review application can be considered run even if a worker has commenced further legal action but will be terminated by WCIRS if the court lists the matter for a final hearing date or refers a medical question to the Medical Panel.
The WRICS must complete the review within 28 days of receiving a valid application.
Information on the WorkSafe website is silent on the role of the employer in the Review process. We have asked WorkSafe to amend the guidance to ensure employers have the necessary information about what they should expect if an application for review is received by the WCIRS.
Ai Group has been provided with the following information about the operation of the Review Service by the head of the WCIRS.
The WCIRS can either:
The WCIRS provides a full report to the Agent outlining the reasons for the decision. They also provide a summary report, excluding personal and medical information, that can be provided to the employer.
If the WCIRS believes that the decision is sustainable, they will advise the Agent and worker accordingly. The worker will then have the option to proceed with legal action if they wish.
If the WCIRS believes the decision is not sustainable, they will direct the Agent to make a different decision, and the Agent must comply with that direction. However, this does not stop the Agent from making a further decision after they have scrutinised the WCIRS decision and considered any new information that has been provided.
As an example: The WCIRS may direct the Agent to accept a claim that the Agent had previously rejected. The Agent is required to act on that direction, accept the claim and commence payments. However, once the Agent has considered the additional information, they could make a decision to terminate benefits. This new decision would be subject to all the normal review and appeal processes.
The WCIRS has committed to providing statistics to Ai Group about the number of applications they are receiving, the types of issues being considered and a summary of outcomes. We have asked that they consider surveying employers impacted by the WCIRS process to identify whether the Agents are engaging appropriately with employers throughout the process.
Ai Group will be having ongoing discussions with WorkSafe about the effectiveness of the WCIRS on achieving the outcomes envisaged by the Ombudsman and any positive or negative impacts on employers.
To assist us to contribute employer experiences to the ongoing operation of the WCIRS, we would like to get feedback from any members about their experience in relation to any review applications made by a worker. We are particularly interested in receiving feedback about whether the above processes for engagement with employers are being followed, but any other relevant feedback will be welcomed.
Please provide your feedback to Tracey Browne via email or on 0438 207 799.
Ai Group Members are encouraged to contact us or call the Workplace Advice Line on 1300 55 66 77 for assistance with their workplace matters.
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Tracey is Ai Group's National Manager of Safety and Workers Compensation Policy. She has a strong understanding of harmonised WHS laws, jurisdictional based variations, and non-harmonised OHS laws in Australia, as well as workers' compensation expertise in multiple Australian jurisdictions. Tracey has a strong understanding and skills in workers' compensation premium management in multiple Australian jurisdictions and is an excellent trainer, with a passion for sharing knowledge on workers' compensation schemes and building practical skills in effective management of claims and return to work.
