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Published: 19 March 2018
Author: Tom O'Grady
Last week, Michael Burdess gave an insight into how to dispute a decision made by WorkCover insurers in Victoria in relation to injuries suffered in the workplace. But how do you dispute a decision made by the Transport Accident Commission (‘TAC’) if you're injured in a vehicle or other road accident in Victoria?
Like all WorkCover insurance decisions, each and every TAC insurance decision that is made must be communicated via a notice or letter setting out the TAC’s decision and the reasons why they have made the decision. Whether it is a decision about if the claim is accepted or not, or if it is about the TAC's approval of a certain treatment service, you should be notified by a letter. However, the reality is that this doesn’t always happen, and you can dispute that decision. You can also lodge a dispute about matters on which the TAC are yet to make a decision if they are taking an unreasonable amount of time to respond.
There are three options that a TAC claimant can take to dispute a decision by the TAC:
An informal review involves a review of the TAC’s decision by a specially appointed Review Manager. The Review Manager works entirely independently of the claims area where TAC decisions are made and they consider all available information, including any new information that’s provided.
To request an informal review, a form needs to be completed and sent to the Review Manager within 12 months of becoming aware of the decision. You should be aware that if you request an informal review, it does not ‘stop the clock’ on the 12-month time limit. Therefore, if the matter remains unresolved after a couple of months, we recommend you either get in contact with us to assist you or proceed with an alternative avenue of dispute resolution to progress the matter.
These protocols apply to decisions made on or after 1 March 2005 where a client has, at any time after the transport accident, retained a legal representative who is a member of the Law Institute of Victoria (‘LIV’) or the Australian Lawyers Alliance (‘ALA’). Clients who have such representation may not issue a VCAT proceeding unless a pre-issue review has been completed in accordance with these protocols.
Under the protocols, clients may within 12 months of becoming aware of a TAC decision apply via their legal representative for a pre-issue review. After the TAC acknowledges the application for pre-issue review, the TAC must arrange a pre-issue conference within 90 days of the application being received. The conference requires the attendance by the parties to the dispute to facilitate the resolution of the dispute application. The TAC will also pay the relevant expenses towards an interpreter, medical reports from treating practitioners, a joint consultant specialist's examination (if the dispute is medical in nature), a facilitator and/or an independent mediator.
Our firm is a proud signatory to these protocols and, in our experience, disputes lodged with the TAC via this process more often than not resolve in favourable outcomes for our clients. Thanks to these decisions, it is not often that we are forced to consider VCAT proceedings to dispute TAC decisions.
VCAT is an independent Tribunal that deals with a range of civil and administrative disputes. VCAT is less formal than a Court and in many cases, you don’t need a lawyer or professional representative; however, we always recommend that you do to ensure that your rights are adequately protected.
Before a VCAT hearing, the Tribunal may order a compulsory conference or a mediation between the TAC and a solicitor (or with the claimant directly if not represented). If the matter remains unresolved, it proceeds to a full hearing at VCAT where the Tribunal Member makes a decision as to the lawfulness (or otherwise) of the TAC’s decision.
Keep in mind, you have strictly 12 months from the date of the decision to dispute it. If you do not dispute the decision by that point in time, neither the TAC or VCAT has any ability under the law to review the decision. If you have pursued the second option above, and the TAC has made a decision concerning the pre-issue review, then you only have three months from being notified of that decision to apply to VCAT for a review of that decision.
Therefore, if you request an informal review under the first option above and it doesn’t progress in a matter of months, you should contact one of our offices for assistance or initiate the process of either options 2 or 3 above. I have personally witnessed claims where entitlements have been rejected and an informal review has been ongoing for more than 12 months and nothing else has been done to challenge the notice. Unfortunately, in those circumstances, the injured has no legal avenue left to appeal the decision if the outcome of the informal review is unfavourable.
Please note that this is general advice only and we would recommend that you contact one of our offices to speak immediately and directly with a lawyer about any queries you may have specific to your circumstances.
If you'd like to make an enquiry about a legal matter, talk about a career at RCT, or perhaps have a suggestion on how we can improve our service or even our website, we'd like to hear from you.
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