WorkSafe Victoria have now established "WCIRS" – the Workers Compensation Internal Review Service which has been established to review certain unresolved decisions once they have gone through the Conciliation process.
The purpose of this new process is to ensure a decision made by an Agent is fair, reasonable and sustainable. WorkSafe are also keen to hear from the worker about why they believe a decision made by an Agent is unfair.
How the new review process will work?
An IRO – Internal Review Officer – will hear the dispute once a matter has gone through the Conciliation process.
According to the WorkSite website, in considering whether or not an Agent's decision is "sustainable", the following will be considered:
- The lead up to how the Agent made their decision perhaps taking into consideration what factors the Agent considered in coming to their decision;
- The notice of decision (which is often in written letter form to the worker) and any practical impacts on the worker's recovery and/or return to work;
- The worker's direct feedback about what has occurred and why they feel the decision is not right;
- What happened at Conciliation;
- The impact of, and use by the Agent of any new information on the reviewable decision.
When does the new WCIRS process commence?
WorkSafe can review decisions made on or after 3 December 2019, where the conciliation process has finished and the Conciliation officer has issued a Genuine Dispute Certificate.
What is a "sustainable" decision?
According to Worksafe, a sustainable decision is a "reviewable decision"
What happens if an IRO maintains the Agent's decision is sustainable?
If, after conducting an investigation, an IRO considers the Agent's decision is sustainable (a reviewable decision) then the decision will remain in effect and unchanged. The worker can commence or continue an application in Court provided they have a Genuine Dispute Certificate issued by the Accident Compensation Conciliation Conference (ACCS).
What happens if WorkSafe does not maintain the Agent's decision therefore being not sustainable?
Worksafe will direct the Agent to overturn their decision. This should mean that the decision will be cancelled thereby having no effect.
Each worker's case will depend on their individual application.
What we do know is that if the Agent's decision is not sustainable, within two business days of the decision being overturned the Agent will restore the payment or service, write to the worker stating this has occurred and make a new decision and communicate this in writing to the worker.
If a reviewable decision is related to a rejection of a workcover claim due to liability, within two business days of the decision being overturned, the Agent will commence re-assessing and re-making the decision in accordance with their investigation and write to the worker confirming this has occurred.
Practically how do I make an application?
You can make an application via an online form or you can call WorkSafe for assistance. Our Melbourne team are also available for assistance.
The WCIRS is fresh and unchartered territory, however, it appears to be a favorable improvement to the existing process. It might mean that certain evidence such as updated medical reports obtained from the worker's health practitioners, which can often be overlooked by the Agent at a Conciliation conference or simply not accepted, may be more carefully considered in light of the Agent's decision by an IRO. In so doing, certain decisions may avoid going down a longer, more stressful and expensive Court process.
Then again, if the IRO maintains the Agent's decision, it will no doubt increase worker tension and only delay a Court process.
On balance, the Carroll & O'Dea Melbourne team welcomes the new process and will certainly be advising our clients, where appropriate to do so, to take part in the new review process.
All in all, you can trust that the Carroll & O'Dea team will continue to update you in relation to the 'Worksafe Internal Review' process and how it evolves.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.