Once the authorised insurer/claims agent receives a workcover claim it has 28 days in which to accept or reject the claim.
If the workcover agent rejects the claim it should provide written notice of the rejection. If it doesn’t reject the claim within the 28 days allowed, then the claim is treated as accepted. Normally, before deciding whether to accept or reject the claim the authorised insurer or claims agent will arrange a medical examination of the worker.
What if a workcover claim is rejected or notice is given that weekly payments will stop
If a workcover claim is rejected or if a notice is received that weekly payments will stop, and the worker wants to dispute that notice he/she must request conciliation, that is, have the matter referred to the Accident Compensation Conciliation Service (Conciliation).
If this happens the worker should contact an experienced injury lawyer who can help complete and send the necessary form(s) and if needed arrange to obtain a medical report or reports.
The aim of Conciliation is to try to resolve disputes without the need for court proceedings. All disputes must be referred to the Accident Compensation Conciliation Service as the first step before court proceedings can be taken.
In order to arrange for a disputed claim to be dealt with by the Accident Compensation Conciliation Service a Request for Conciliation form needs to be filled out and then sent to the Conciliation Service together with the notice, (if one exists) about which the worker complains. This must be done within 60 days of receiving the notice. It is possible to lodge a request outside that time frame, in some cases, and request an extension of time, however there is no guarantee that the extension of time will be granted by the Conciliation Service.
It is best that you seek legal advice and/or assistance!!!!
Conciliation: how it works
The Conciliation Service arranges a meeting between the worker and the WorkCover claims agent (the employer can also be present) with a view to seeing whether the dispute can be resolved. In many cases it is helpful to obtain a medical opinion prior to the date (i.e. from your treating surgeon, GP and even a second opinion-which you are entitled to under workcover, so that you are fully ‘armed’) when the conciliation meeting is to take place regarding the worker’s condition.
If, for example, the claim for weekly payments has been rejected on the basis that the worker ’s injury has not been caused by work but rather by age degeneration it would be important to obtain a report from the worker’s treating doctor or doctors about that issue.
In the event that the treating doctor or doctors held the opinion that the worker’s condition was caused by work rather than age degeneration then that information might help persuade the WorkCover claims agent to change their decision.
A worker can be assisted and advised at the conciliation meeting. A lawyer can only act for a worker if the WorkCover claims agent and the employer agree. Two representation agencies, Union Assist and WorkCover Assist can help and advise workers at the conciliation level. Their representatives assist workers at conciliation meetings. Your own union can also assist.
Union Assist can be contacted at (03) 9639 6144 and WorkCover Assist on (03) 9941 0537.
Proceedings at conciliation
The conciliation meeting
Proceedings are conducted informally. Typically the conciliator will ask the worker to explain why he or she believes they are entitled to compensation and then ask the claims agent to justify their opposition. It is then not uncommon for the conciliator to talk to the parties separately with a view to reaching an agreement. Often an agreement is reached.
In very limited circumstances a conciliator can order that the worker be paid the compensation he or she is seeking even if the claims agent does not agree. However in most situations where agreement cannot be reached the conciliator either declares a genuine dispute or if the dispute is about a medical issue, refers that medical issue to a medical panel.
Note: when a matter has been settled at Conciliation, the Conciliator will issue you with a Certificate which is legally binding. Some workcover agents will ignore this binding certificate and when confronted may tell you lies such as that “they were not aware of it or that they had misplaced the certificate etc etc.”If (and when) this happens (that is – when the workcover agent ignores the ACCS ruling) you must immediately contact (per telephone) the conciliator who dealt with your matter (his/her details will be on your certificate, incl. a reference number) who will (or should) rectify the matter. You should also put a formal complaint in with WorkSafe.
And after that hold tight because in all likelihood a few months down the track,the whole procedure will start all over again as workcover will continue their uttermost best to deny you what you are legally entitled to. So IMEs will start again, followed by threats, followed by ceasing of decreasing a ‘benefit’,…, and so the vicious circle goes on and on and on…
If you don’t have legal representation, the workcover agents are known to piss you around even more, because they know they can get away with virtually anything!
If a conciliation officer refers a medical question to a medical panel, the medical panel is required to provide an answer to the medical question within 60 days. The medical panel usually consists of 2 or 3 doctors selected from a register of medical practitioners.
The decision of the medical panel is binding (although recently the High Court has debated this). For example, if the conciliation officer asked the medical panel to decide how a worker’s injury had been caused, eg. whether a back injury was the result of work or age, then the medical panel’s decision determines the issue. Other than in exceptional circumstances, there is no appeal from a medical panel decision to a court.
The procedure the medical panel normally adopts is to arrange for an examination of the worker. The panel typically question and examine the worker on the one occasion. They then give written answers to the questions they have been asked and also an opinion setting out the reasons why they have answered the questions in the way they have. Both the answers to the questions and the written opinion are available to the worker concerned and his or her representatives.
A worker, employer and the WorkCover claims agents have the right to submit documents to the medical panel which they regard as being relevant and the documents which are submitted by the claims agents and the employer should be available to the worker so that he or she can point out any inaccuracies or mistakes in the documents, either before the panel meeting or when in front of the panel.
If the conciliation service cannot resolve the dispute between the parties by discussion and the matter has not been referred to a medical panel to make a decision, then a worker is entitled to take his or her matter to court. Most court proceedings are taken in the Magistrates Court. Some cases are taken to the County Court. Even if court proceedings have been commenced, either party has the right to have a medical question referred to a medical panel.
If a court refers a dispute to a medical panel then the findings of the medical panel are binding. That means that even if the Magistrate or Judge hearing the case were to disagree with the medical panel, the Magistrate or Judge would have to make a decision consistent with the medical panel findings. If the dispute has been taken to court and not referred to a medical panel, it is then decided by a Magistrate or Judge. Each party calls its witnesses including doctors and the Magistrate or Judge makes a decision about the dispute.