Workers Compensation Independent Review Service (WCIRS) Process – An Independent Review into Management of Complex Workers’ Compensation Claims.

Workers Compensation Independent Review Service (WCIRS) Process – An Independent Review into Management of Complex Workers’ Compensation Claims.

Irrational WorkCover insurer decisions will now be subject to a new appeals process.

Injured workers can now request that WorkSafe investigate disputed insurer decisions before filing a lawsuit if their case is not settled through conciliation. WorkSafe Victoria established the Workers Compensation Independent Review Service to provide injured workers with another option for requesting that WorkSafe review its determinations on their workers’ compensation claims.

WorkSafe will conduct reviews independently of the insurers. If it is determined that the option is not viable, they will instruct the insurer to change it.

The new service was created in response to a report published the previous year by the Victorian Ombudsman, which identified questionable behaviour on the part of numerous agent insurers in the handling of complex workers’ compensation cases.

With this innovative process, bad decisions made without sufficient evidence can be quickly and affordably overturned. It is still recommended that you consult with a lawyer to determine the best way to submit your request for review and to ensure you are fully aware of your legal rights and the benefits of the WorkCover program, including lump sum compensation. Within two years of the decision, a request for review must be made to WorkSafe, and WorkSafe must complete the review within 28 days of receiving the compliant request.

Before you begin your application, we recommend that you read the following information about what can and cannot be reviewed, as well as other useful information to help you through the review process.

Victorian Workers’ Compensation Independent Review

An independent review of WorkSafe’s handling of complex workers’ compensation claims, as well as the Victorian Government’s response to the review’s recommendations.

In 2019, the?Victorian Ombudsman’s report WorkSafe 2: Follow-up enquiry into the management of complex workers’ compensation claims?uncovered troubling instances of injured workers being treated unfairly and denied their legal entitlements. The analysis revealed a structural flaw in the claims management approach for complex claims, as well as insufficient control and review systems.

The Victorian Government commissioned Peter Rozen QC to conduct?an independent review of the agent model and the management of complex WorkCover claims, and it now applauds his report Improving the?Experience of Injured Workers: A Review of WorkSafe Victoria’s Management of Complex Workers’ Compensation Claims.

The Victorian Government has considered the review’s 22 recommendations and has?accepted five recommendations; accepts fourteen recommendations in principle; believes two recommendations require further consideration and notes one recommendation.

A copy of Peter Rozen QC Report – Improving the experience of injured workers: A review of WorkSafe Victoria’s management of complex workers’ compensation claims

A copy of the?Victorian Government Response – Independent Review into Management of Complex Workers’ Compensation Claims.

A copy of?WorkSafe Response – Implementation plan?– Information and guidance on how the Workers Compensation Independent Review Service (WCIRS) can help, what WorkSafe does, and when and how you can request an independent review of certain decisions.

Workers Compensation Independent Review Service was established on 30 April 2020

In response to Recommendation 3 of the Victorian Ombudsman’s report,?WorkSafe 2: Follow-up investigation into the management of complex workers compensation claims,”?the Worker’s Compensation Independent Review Service (WCIRS) was established on 30 April 2020.

WorkSafe, in accordance with Recommendation 3 of this report, establishes a separate business unit to independently review disputed decisions on workers’ requests following an unresolved conciliation. If necessary, WorkSafe should use its authority under the?Accident Compensation Act of 1985 and the Workplace Injury Rehabilitation and Compensation Act of 2013 (the compensation law)?to order agents to reverse decisions that are not sustainable or have a reasonable prospect of success.

The process by which the Workers Compensation Independent Review Service assess and reviews decisions

An independent review of certain ‘reviewable?decisions’ made by or on behalf of?WorkSafe under the Workplace Injury Rehabilitation and Compensation Act 2013 or the Accident Compensation Act 1985?that remain unresolved after a Conciliation.

Injured workers can request a free, independent review of certain disputed “reviewable decisions” under the compensation statute that hasn’t been resolved during the conciliation process from a team within Worksafe Victoria’s Independent Review Division. An 18-year-old worker or designated representative who is related to the “reviewable decision” may ask for?an impartial review?of the?“reviewable decision.”?If you are under the age of 18 or have a legal disability, you must be represented by an adult who has been designated by your legal guardian.

Recommendation 3 of the report recommended that WorkSafe Victoria,

“Establish a dedicated business unit to independently review disputed decisions when requested by workers following unsuccessful conciliation. When necessary, WorkSafe should use its existing powers to direct agents to overturn decisions which do not have a reasonable prospect of success at court (i.e. would not be sustainable).”
WorkSafe Victoria

The independent review service invites employees to communicate their concerns as this will allow WorkSafe to examine the agent’s decision and determine whether the decision regarding a worker’s claim or right to benefits is justifiable.

An?Independent Review Officer (IRO)?will evaluate the sustainability of a decision in a way that ensures that the decision-making process and the decision itself were conducted in a fair, reasonable, transparent, objective, and high-quality manner for the purposes of an independent review.

This independent review service’s main objective is to provide information on how the?Workers’ Compensation Independent Review Service (WCIRS)?conducts independent reviews and determines whether a decision is sustainable. The WCIRS believes that it is critical that workers feel supported and understood during the evaluation process.

WCIRS’s Guiding Principles: How will sustainability be applied?

The WCIRS considers requests from workers to review a decision in an independent and impartial manner, putting the worker at the centre of the independent review process. The IRO will consider factors such as:

  1. the decision-making process, including what has happened on the claim in the lead-up to the decision being made,
  2. the notice of the decision and any practical impacts of the decision on the worker’s recovery and/or return to work,
  3. the worker’s direct feedback about what has occurred and why they feel that the decision is not right,
  4. what happened at Conciliation; and
  5. the impact of, and use of any new information on the reviewable decision.

The WCIRS will assess the quality and clarity of the decision, as well as whether it was made and/or maintained by the agent fairly, reasonably, and impartially, in determining whether a reviewable decision is sustainable.

Information considered when assessing the sustainability of a decision

The scope of information that an IRO may consider when conducting an independent review of a “reviewable decision” is unrestricted if it is relevant to the issue at hand. It is critical that the IRO considers all relevant information from the worker and Agent to understand what has happened and make an objective decision about the expected outcome.

The IRO will consider the following factors (not an exhaustive list):

  1. the ‘Application for Independent Review of an Agent decision’ form and any supporting information provided by the worker,
  2. what the notice of decision says and whether the reasons given make sense,
  3. any applicable compensation law, WorkSafe policies or guidelines,
  4. the information available when making the decision – this could include things such as the claim form, medical reports, Medical Panel opinions, circumstance investigation reports, financial documents etc.,
  5. the contact with and the information sought and obtained from the worker before the decision was made,
  6. the quality of the information considered when making the reviewable decision,
  7. whether any important information was overlooked,
  8. whether any irrelevant information or misinterpreted was taken into account or misapplied any relevant information,
  9. whether any important information was missing at the time the reviewable decision was made
  10. where surveillance is relied upon to make the reviewable decision, whether it was obtained and applied fairly and objectively to the decision and the reasons given in the decision,
  11. whether a conciliation took place and what happened,
  12. whether any new information was taken into account and considered whether the reviewable decision is still sound or if further enquiries need to be made,
  13. whether the best available information was assessed in a fair and reasonable way.

What is a ‘sustainable’ decision?

In general, the WCIRS defines a sustainable decision as?a “reviewable decision”?that, when assessed by an IRO using the sustainability considerations outlined above, is a decision that:

  1. has been fairly and reasonably made in accordance with the compensation legislation,
  2. is based on the best available information,
  3. was clearly communicated and properly explains the reasons to the worker; and
  4. has a reasonable prospect of being maintained by a Court.

The sustainability of a decision relating to Provisional Payments will only be assessed by whether the decision has a ‘reasonable prospect of being maintained by a Court’ test.

When can an independent review assist?

An independent review can be requested after a?‘reviewable decision’?made by or on behalf of WorkSafe?on or?after 3 December 2019?has been through conciliation at the?Workplace Injury Commission (previously known as the Accident Compensation Conciliation Service (ACCS)), and:

Within 2 years of –

  • a Workplace Injury Commission Officer issuing a Genuine Dispute Outcome Certificate relating to the decision; the date of the GDOC being issued, or
  • a Court revoking a direction issued by a Workplace Injury Commission and finding there is a Genuine Dispute in relation to the decision, and

Prior to the Victorian Magistrates’ or County Court –

  • listing the matter for a final hearing date for review of the decision, or
  • referring to a medical question relating to the decision of the Medical Panel for assessment

If the ‘reviewable decision’ is listed for a final Court hearing date or referred to the Medical Panel during an independent review, WCIRS will stop the review and take no further action.

Related reading: New Arbitration Service to Assist Victorian Injured Workers

Which decisions are reviewable?

Not all decisions can be reviewed. Decisions that can be reviewed as ‘reviewable decisions’, which include a decision made by or on behalf of WorkSafe that is made on or after 3 December 2019:

  • relating to provisional payments for mental injury,
  • not to accept a worker’s claim, including a decision not to accept liability for an injury, condition, or disease,
  • relating to weekly payments, including a decision:
  • to stop, suspend or refuse to pay weekly payments
  • about the calculation of weekly payments
  • about whether a worker has or does not have a current work capacity; and
  • relating to medical and likes (similar) services.

What decisions can’t be reviewed by the WCIRS?

Examples of decisions that can’t be reviewed by WCIRS service include decisions:

  • about a worker’s impairment benefits entitlement, including a determination about liability for an injury or degree of impairment,
  • relating to the death of a worker or their dependants,
  • to reject a claim for compensation on the basis that the worker is not a worker (or a deemed worker) under the compensation law,
  • to reject a claim for compensation on the basis that the employer was not the correct employer of the worker at the time of the injury or death,
  • where there has been a final Medical Panel determination,
  • that have been settled by agreement between the Agent and the worker,
  • made by, or on behalf of, a self-insurer under the compensation law,
  • relating to a Serious Injury or Common Law Damages application; or,
  • that are not otherwise listed as a ‘reviewable decision’ above.

If you are unsure as to whether the service can assist, contact WCIRS on?03 4243 7061?to discuss your options.

How to nominate a person or representative to assist

You can nominate a person, such as a family member, friend, union, or legal representative to assist them with the review.

If a worker would like to be represented, they can:

  1. Nominate a friend or family member to assist them, provided that person is 18 years or older.
  2. Seek assistance from WorkCover Assist.
  3. Ask Union Assist to represent them.
  4. Ask their individual Union representative to represent or assist them.
  5. Engage a solicitor to act on their behalf. The Law Institute of Victoria offers a ‘Find a Lawyer Referral Service’.

When is a nominated person or representative required?

If a worker is under the age of 18 years or is living with a legal disability, they must be represented when lodging a WCIRS application by:

  1. their legal guardian; or
  2. a person or a representative nominated by the worker’s legal guardian who is 18 years or older.

To file an application with the WCIRS, a worker must be over the age of 18. The WCIRS is quick, simple, and free, and it can also help workers with the application process. However, if a worker wishes to appoint a person or representative to assist them with their Independent Review, the WCIRS application form includes a section in which the worker can do so.

How much involvement can a nominee or representative have?

On the WCIRS application form, workers are prompted to indicate how they would like their representative to take part in the Independent Review. A nominated individual or representative may choose between two approaches to take part in an independent evaluation.

The worker can ask the WCIRS to:

  1. communicate and request information from the worker directly in relation to their application but send written correspondence to the nominated person/representative; or
  2. communicate with the nominated person/representative directly in relation to the application and direct all requests to and through the nominated person or representative.

Changes to the nominated person or representative, or how WCIRS involves them

Circumstances may change, and you may wish to change your nominated person or representative. If, after submitting a WCIRS application form, the worker wishes to change who the nominated person or representative is or how the person should be involved in the process, the worker must notify the WCIRS in writing by email to?[email protected].

What you can do to assist with the review

It is critical to the WCIRS service that workers feel understood and supported. As a result, if you are representing a worker during an independent review, you must provide WCIRS with all relevant information, including why the worker believes a decision is wrong. It is also essential that you respond as soon as possible to any requests for information or clarification.

Costs

WCIRS will not reimburse any costs incurred by a worker (or their person or representative) as a result of engaging a person or representative to assist them with an Independent Review, regardless of the outcome of the independent review. Before nominating a person or representative, workers and nominated persons or representatives should discuss any costs.

Understanding the independent review process

Whether you are conducting an independent review for yourself or on behalf of a worker, we encourage you to read the following information. It will teach you about the independent review process, which decisions can and cannot be reviewed, how and when specific decisions are reviewed, and how to help a worker file an application.

How to lodge a request for an independent review

Lodging an application form is easy and seamless. You can lodge a request for an independent review using one of these channels:

  1. Digital form – Online 4-step application?– Review of an agent decision
  2. PDF application form –?Application for an independent review of an Agent decision
  3. You can call our friendly service team on?03 4243 7061?who can assist in completing the application form and email or post it to you to review, sign and return either via email or post.

It is important that the independent review officer (IRO) fully understands your view of the situation. Use the application form to explain to the independent review officer (IRO) why you believe an incorrect decision was made.

Once the application has been submitted?& What to expect during the review

WCIRS team will contact you (or your nominated person or representative, as applicable)?within one business day?to confirm in writing if your application has been accepted. When an application is accepted, one of their IROs will contact you (or your representative) within two business days to discuss it.

The role of an Independent Review Officer (IRO)

It is the IRO’s responsibility to compile all relevant data to determine whether the decision under review is “sustainable.” A fair and reasonable choice supported by the best available information is frequently regarded as sustainable. If the decision was made in accordance with compensation law, the review will consider how well it was explained and presented.

The IRO cannot change, alter, or replace an existing decision. This means that the IRO cannot determine whether you are owed money or services, or whether your claim should have been approved.

Conducting the review

To conduct a thorough review, the IRO must gather as much information as possible about the decision. An IRO will look over the claim file and any supporting documentation provided by you or your representative. To assist them in making their decision, an IRO may request additional information or clarification from WorkSafe, the Agent, or you (or your designated person/representative).

The IRO will conduct an independent review of how the agent made the “reviewable decision,” considering factors such as:

  • the information that was available and considered,
  • the quality of any information considered,
  • any information that may have been overlooked,
  • whether any important information was missing,
  • the use of certain kinds of information, such as surveillance,
  • how the available information was analysed and applied,
  • what the notice of decision says and whether the reasons make sense,
  • the compensation law, WorkSafe policies or guidelines that apply to the ‘reviewable decision’,
  • the effect of the ‘reviewable decision’ on the worker,
  • what happened at conciliation,
  • the impact and use of any new information on the ‘reviewable decision’.

How long will the review take?

The IRO will investigate and review the decision as soon as possible. You and/or your nominated person or representative will also be notified in writing of the application’s outcome.?

The review will be completed in the following time frames after receiving a valid application:

  • 15 business days for a decision relating to provisional payments,
  • 42 days for a decision relating to medical and like services,
  • 56 days for decisions to reject a claim for compensation and decisions relating to weekly payment entitlements.

Can an application be withdrawn?

If you decide that you no longer want a decision reviewed, you can withdraw your application at any time before the result is communicated. A written request to withdraw the application should be sent to [email protected]. If you require assistance, please contact WCIRS on 03 4243 7061.

Completing the Independent Review Outcomes

Based on the findings of the review, there are two outcomes after the IRO has completed their investigation:

1. The Independent Review is discontinued prior to a final determination of the WCIRS because the:

  • Worker withdraws their WCIRS application; or
  • Agent withdraws the reviewable decision.

2. The WCIRS concludes the independent review and finds that the reviewable decision:

  • Is not a ‘sustainable decision’ and directs the Agent to overturn the decision in accordance with the compensation law, or
  • Is a sustainable decision and confirms the decision.

Worker withdraws their WCIRS application

A worker can withdraw an application for an Independent Review at any time prior to the final outcome of the Independent Review being communicated by our service. IRO will notify the Agent in writing when a worker withdraws their application for an independent review.

What happens if an agent withdraws a “reviewable decision” and what happens if a “reviewable decision” is found to be unsustainable?

The Agent can reconsider a reviewable decision at any time during the review period. The Agent can withdraw a reviewable decision prior to an Independent Review Officer (IRO) issuing the outcome of the independent review. Or if the IRO determines that?a ‘reviewable decision’ is not sustainable, WCIRS orders the Agent to overturn the decision in accordance with the compensation law. The agent will be directed to reverse its decision. This means that the decision under review is cancelled.

The effect of the IRO’s decision to overturn a ‘reviewable decision’ (or where an agent withdraws the decision) varies for each worker’s application and, in general, depends on whether the worker was already receiving payment or service when the agent’s decision was made.

If the worker was receiving a weekly payment related to the decision or a medical or like service when the Agent’s decision was made, within 2 business days of the decision being overturned the agent will:

  • restore the payment or service, including payments or services that the agent would have been required to pay if it had not made the overturned or withdrawn decision, in accordance with the compensation law; and
  • write to the worker confirming this has occurred; and/or
  • make a new decision after a decision is withdrawn?and communicate it in writing to the worker.

If the overturned or withdrawn reviewable decision relates to a decision not to accept liability for a worker’s claim (including a decision not to accept liability for injury, condition, or disease) or not to pay a weekly payment or for a medical and likes service that the worker was not receiving at the time the agent decision was made, within 2 business days of the decision being overturned, the agent will:

  • commence re-assessing and re-making the decision in accordance with findings, reasons or recommendations given or made by the IRO and the compensation law; and
  • write to the worker confirming that this has occurred.

Upon notification of a withdrawal by the Agent of a reviewable decision, the WCIRS will discontinue the independent review. The service will also provide confirmation in writing to both the Agent and the worker that the independent review has been discontinued because of the Agent’s decision to withdraw the reviewable decision.

Confirming the Agent’s decision – What if a reviewable decision is found to be a sustainable decision?

Once the IRO has gathered all relevant information and is satisfied that they have a thorough understanding of the workers’ claims, they will decide on the outcome of the review. During an independent review, the IRO may determine that a reviewable decision is sustainable, but it may also identify minor errors (such as spelling or typographical errors) in the decision notice that do not jeopardise the decision’s sustainability. In such cases, the IRO can reach the conclusion that the reviewable decision is sustainable, identify any minor flaws in their decision-making process, and explain why they do not believe the decision is jeopardised.

If the IRO investigates and concludes that the decision is viable, it will remain in effect and unchanged.

Court proceeding

If the worker chooses to progress with their dispute, they can consider arbitration via the Workplace Injury Commission (known prior to 1 September 2022 as the Accident Compensation Conciliation Service or ACCS)?or commence or continue an application in court using the Genuine Dispute Outcome Certificate (GDOC) issued by the Workplace Injury Commission Conciliator.

The independent review process is a step in the workers’ compensation dispute resolution process that is optional. It can be initiated by the worker prior to, during, or after filing an application in Court,?as long as the application is made within two years of the Workplace Injury Commission issuing the Genuine Dispute Outcome Certificate and prior to a Court setting a final hearing date?for review of the decision or referring a medical question relating to the decision to the Medical Panel for assessment.

If the ‘reviewable decision’ is set for a final Court hearing or referred to the Medical Panel during an independent review, WCIRS will end the review and take no further action.

As a result, while the WCIRS is reviewing the decision, an Agent may be required to respond to the worker’s Court proceedings. Workers should seek independent legal advice regarding any time constraints for filing a court application.

Employer’s role during a Workers’ Compensation Independent Review of a decision

Information for?employers?in relation to the?Workers’ Compensation?Independent Review process.

Agent’s role and responsibility during a Workers’ Compensation Independent Review of a decision

It is still the Agent’s responsibility, as with other communications relating to Agent decision-making, to keep employers informed about the existence, progress, and outcome of a Workers’ Compensation Independent Review. Any questions an employer may have regarding an Independent Review should be directed to their appropriate Agent or insurer. Information on which Agent decisions made under the?Workplace Injury Rehabilitation and Compensation Act 2013 or the Accident Compensation Act 1985 (compensation law)?WorkSafe considers to be ‘reviewable decisions,’ as well as when and how they are reviewed.

Interactions between WCIRS and Agents during an independent review

While the WCIRS conducts an independent review of an Agent’s decision, interactions between the service and the Agent will be limited to notification of an independent review, requests for additional information (as needed), and communications regarding the outcome of an independent review. When an Independent Review is being conducted, WICIRS will notify the Agents responsible for making the reviewable decision in writing. WCIRS may request additional information from an Agent to assist with the independent review. Any information requested by an Agent must be provided?within three business days?of receipt.

What can I do if I am unsure if WCIRS can review the decision?

Contact information for representatives, you can seek help from:

WorkCover Assist??

WorkSafe Victoria offers a free service called WorkCover Assist, which can assist you with your WorkCover dispute as it moves through the conciliation process. We hope to make the conciliation process easier for you by providing you with support and guidance. WorkCover Assist can be nominated on the Request for Conciliation form or by informing the Workplace Injury Commission (WIC) that you want WorkCover Assist to assist you with conciliation.

You contact WIC directly at?9940 1111?or?[email protected]?and advise them you require assistance by WorkCover Assist. WIC will add WorkCover Assist to the dispute.

The request for Conciliation Form and Checklist is available for download in pdf format:?Application for Conciliation Form. To request WorkCover Assist to help with your dispute, just tick the box on the Request for Conciliation Form where it asks:

Do you require an assistance provider at conciliation?

  1. Tick?Yes
  2. Next to?WorkCover Assist?tick ‘Yes’

Union Assist (UA)??

Union Assist, working with your union, provides expert advisers to help injured union workers with your WorkCover disputes at the Conciliation stage. Union Assist also provides advice on WorkCover issues that may arise. The service is available to members of?associated unions?and is provided free.

Victorian Trades Hall Council??

Victorian Trades Hall Council?is the voice of Victorians at work, and is an organising movement, coordinating 41 unions?and over 500,000 Victorian union members. Victorian Trades Hall Council is the decision-making body of the Victorian union movement

Law Institute Victoria??

Find your lawyer referral service.

Law Institute Victoria?will help you find law firms that offer services that match your legal issue.?You can search by:

  • Your chosen location
  • Your legal issue or required area of law
  • Specific firm name

Written by Yon Ta, 14 November 2022.

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Disclaimer:

The information in this post is strictly for informational and educational purposes only and should not be construed as legal advice. It is not intended to express specific opinions about specific cases. Before acting on any of the issues discussed in this post, seek additional advice. The information provided should not be relied on for any purpose other than to assist you to understand how Workers’ Compensation insurance works. It is for illustrative purposes only and My WorkCover Solutions Pty Ltd does not accept liability for any loss or damage suffered by any person resulting in any way from the use of or reliance on, the information provided. The information in this article is believed to be correct as of the date of publication. However, changes in the applicable laws may have an impact on the accuracy of the material. This article contains general information that is not tailored to any specific person’s situation. This publication may contain information that relates to the regulation of Workers’ Compensation insurance in your State or Territory. To ensure you comply with your legal obligations, we would recommend you refer to the appropriate legislation as currently in force in the State or Territory you conduct your business. You can find up-to-date legislation by visiting each state’s WorkCover Authority website, alternatively contact myWorkCover for updated information.

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