Published: 20 May 2019
Author: Alyssa Lewis and Tanya Neilson
How do I dispute a decision by WorkCover to deny my entitlements?
What can I do if my WorkCover entitlements are terminated or if I disagree with a decision regarding my WorkCover claim?
In this blog I explain:
- How to dispute a WorkCover decision made by an insurance firm
- How conciliation works to resolve a dispute
- What happens if conciliation fails and the role of medical panels
An injured worker is entitled to dispute a decision regarding their WorkCover claim. Once an injured worker receives written notice from an insurance company, they have 60 days to lodge a request for conciliation to dispute the decision with the Accident Compensation Conciliation Service (ACCS). If more than 60 days have passed, conciliation can still go ahead with the permission of the ACCS.
Conciliation is designed to allow an injured worker to dispute a decision made by an insurance company in an informal setting. All parties involved, including the injured worker and insurance company, can submit further evidence prior to the conciliation conference taking place in order to assist them at the conciliation conference.
Parties must be willing to try and resolve the dispute at the conciliation conference. At a conciliation, conference parties are encouraged to try and discuss their issues, with the assistance of the conciliation officer who is an independent third party.
The following outcomes can be reached at a conciliation conference:
- The Insurer withdraws the notice and the decision; or
- The matter being disputed is accepted with limitations attached to it; (for example, the Insurer might agree to pay a fixed amount of weekly payments or medical treatments) or
- The Conciliation officer issues a direction to the Insurer that they have no arguable case and the decision is revoked; or
- The matter cannot be resolved, and is rejected.
Next steps if conciliation fails
If a matter cannot be resolved at conciliation, an injured worker can:
- Request a Genuine Dispute Certificate; or
- Request a referral to the Medical Panel.
We always recommend that our clients obtain legal advice prior to making a decision at a conciliation conference. At the end of the conference, you can ask the ACCS to give you a few weeks to seek legal advice and then inform them of your decision.
Genuine Dispute Certificate
A Genuine Dispute Certificate can be issued where parties cannot reach an agreement and the conciliation officer is satisfied that there is a genuine dispute. This allows the injured person to issue proceedings at the Magistrates’ Court, which will hear the dispute.
A Medical Panel referral can be made when the matter is about a medical question, which is unable to be determined at the conciliation conference. The conciliation officer has the final say about whether or not it is appropriate for a dispute to be sent to the Medical Panel.
The Medical Panel is an independent body of medical specialists who can answer medical questions which will resolve the dispute. For example, does an injured worker require surgery, or does an injured worker have an incapacity to work? The Panel cannot answer non-medical questions or resolve factual disputes, for example, should the issue be about bullying in the workplace.
Once a matter has been referred to the Medical Panel and an injured worker has been examined, the Medical Panel has 60 days to hand down their opinion. The opinion of the Medical Panel is final and binding except in the case of a technical error.
If there are grounds for an appeal can, it must be done by filing an appeal with the Supreme Court, within 60 days of the opinion.
An appeal can be made on the following grounds:
- That the Medical Panel made an error in its reasoning;
- That the Medical Panel did not consider a relevant fact or document;
- That the Medical Panel gave to much weight to an irrelevant consideration or gave inadequate reasons;
- That the Medical Panel was so unreasonable that no reasonable decision maker could have come to the same conclusion;
- That the Medical Panel did not give procedural fairness to one of the parties.
If you are seeking to dispute a termination and/or decision regarding your WorkCover claim or are an injured worker wanting to know your rights, we suggest that you contact specialised personal injury lawyer who can assist you.
If you think a Medical Panel opinion might have a technical error, it is important to seek legal advice as soon as possible as the 60-day time limit for appeals is strict.