Published: 25 July 2018
Author: Tanya Neilson
What to do when you disagree with a decision made by the WorkCover insurer
If you have a WorkCover claim, and the WorkCover insurer has made a decision that you don’t agree with, it is important that you are aware of your right to challenge this decision.
The Work Place Injury and Rehabilitation Act states that if a worker disagrees with a decision made by the WorkCover insurer they can lodge a request for conciliation with the Accident Compensation Conciliation Service (ACCS) http://www.conciliation.vic.gov.au/.
A request for conciliation generally needs to be lodged within 60 days of the insurer’s decision. Disputes that we often see include:
- the initial rejection of a WorkCover claim,
- termination of weekly payments or medical and like expenses,
- rejection of treatment request such as surgery or psychologist visits,
- failure by the insurer to calculate pre-injury average weekly earnings correctly, or
- failure by the insurer to appropriately assess as 98C or lump sum claims.
The ACCS is an independent organisation whose role is to conciliate WorkCover disputes. You can find the relevant request for conciliation form at http://www.conciliation.vic.gov.au/__data/assets/ pdf_file/0010/58672/Request-for-Conciliation-Form.pdf. Whilst lawyers are precluded from attending the conciliation conference, you can request independent representation from WorkCover Assist. This should be noted on the request for conciliation form.
How the conciliation process works
Once you have lodged a request for conciliation, you will receive confirmation from the ACCS that they have received the request. They will then allocate a day and time for the conference to proceed. It is important to liaise with your lawyer before the conference to ensure all relevant material has been provided to the ACCS for their consideration.
At the conciliation conference will be yourself, a representative from WorkCover Assist, a representative from the WorkCover Insurer and the conciliation officer. Employers are also invited to attend but don’t routinely do so. The conciliation officer will explain the purpose of the conference and what their role and powers are. Everyone at the conference will be provided with the opportunity to speak. Once this has occurred, the parties will break into private conference where they can discuss the matter further with the conciliation officer and their representatives.
It is important to be aware that there are several possible outcomes that can result from a conciliation conference. The first is that the WorkCover Insurer withdraws their decision and the dispute is resolved. The second is that an agreement is reached to resolve the dispute for a limited period of weekly payments or medical and like expenses. Worker’s should consider any settlement for a limited period carefully, as once it has been entered into, it cannot be overturned. If you are unsure of any offers made by the insurer at a conciliation conference you can ask for the matter to be placed on hold whilst you seek legal advice.
If a matter cannot be resolved at conciliation, there are two further avenues that can be pursued to resolve the dispute. The first is that the conciliator issues a Genuine Dispute Certificate. This certificate allows you to issue proceedings in the Magistrates’ Court for determination of the dispute.
Resolving a dispute can be a lengthy exercise
You need to be aware that it can often take 8-10 months for your matter to be reached in the Court, so a Genuine Dispute Certificate will not provide you with a quick resolution. Legal advice is crucial if you have a Genuine Dispute certificate.
The second and final avenue is for the Conciliator to refer your matter to the Medical Panel. The Medical Panel is an independent Panel of doctors who will be charged with assessing your injuries and answering questions agreed upon by the parties and put to them by the conciliator. Only disputes concerning medical matters will be referred to the medical panel. You need to be aware that whilst a Medical Panel will be able to conduct their assessment and issue their decision in approximately three months, their decision is final and binding and cannot be appealed.
To ensure you receive the correct advice regarding your dispute with the WorkCover Insurer, and subsequently maximise your entitlements, we encourage you to obtain legal advice as soon as possible.