How to dispute or challenge workcover insurer decision in Victoria

conciliation-process-vic

The aim of conciliation in Victoria is to resolve disputes and avoid litigation. The injured worker can request conciliation if there is a dispute between the injured worker and the agent (insurer) and/or employer about the injured worker’s claim. What’s more, if your WorkCover insurer fails to respond to a request within 28 days you can also lodge a Conciliation.

Conciliation

Conciliation is an alternative dispute resolution process that can help you avoid having to  go to court. It involves the people involved in a dispute using the services of an  independent conciliator to try to resolve their difference(s). Conciliation is designed to help resolve disputes by sharing information,  identifying the issues in dispute, discussing
them and trying to reach an agreement.

The Accident Compensation Conciliation Service (ACCS) is an independent statutory body established under the
Accident Compensation Act 1985 that employs the principles  of alternative dispute resolution to resolve workers’ compensation disputes. In most  disputes, conciliation is a compulsory step before initiating court proceedings. Under
guidelines issued by the Minister for WorkCover, conciliation should:

  • assist the people involved to achieve durable resolutions and agreements wherever possible
  • be even handed and fair
  • address matters on their merits
  • maximize flexibility and informality
  • promote early return to work opportunities
  • enhance ongoing worker/employer employment relationships
  • be prompt and timely in the conduct of conciliation processes and in dealing with the parties
  • reduce cost implications for the people involved and the scheme and ensure that  matters do not unnecessarily proceed to the Courts

The process of conciliation is conducted by independent ACCS Conciliation Officers who:

  • ensure that everyone involved has a fair say at the conciliation conference
  • encourage everyone to listen to other points of view
  • help discuss the issues in dispute
  • help search for ways to reach agreement
  • must be satisfied that the person making the claim has taken all reasonable steps to settle the dispute through conciliation before the matter can be taken to court

Of note is that in almost all cases, Conciliation Officers do not have the ability to judge or decide a dispute (except where the Conciliation Officer is satisfied that the WorkSafe agent or  self-insurer has no arguable case in support of the decision you are disputing).
However, approximately 70% of WorkCover disputes are resolved as a result of conciliation by the ACCS – Most workers compensation disputes are resolved through conciliation, rather than court action.

Further reading: Conciliation (ACCS) report 2013-2014

What Do Conciliation Officers Do?

The process of conciliation is conducted by independent Conciliation Officers, who work under the Minister’s Guidelines and a Code of Conduct and Protocols developed by the Conciliation Service.(outlined below. Click on the link for a copy of the code of conduct and protocols)

The Conciliator’s Code of Conduct and Protocols includes:

tipBullying and discrimination
A Conciliation Officer will not practise, condone, facilitate or collaborate bullying or harassment. A Conciliation Officer will not practice, condone, facilitate or collaborate with any form of discrimination on the basis of race, sex, religion, marital, parental or carer status, age, political or religious belief or activity, disability, or any other preference or personal characteristic, feature, condition or status.
Any complaint about bullying should be made to the Senior Conciliation Officer. Complaints  about bullying will be investigated in accordance with the Procedures for Investigating Bullying Complaints.

tipComplaints
A party may advise the Senior Conciliation Officer in writing of circumstances where they consider the Conciliation Officer or Service has been in breach of the Conciliation Service Code or Protocols. Complaints may be made by telephone or in writing but the Senior Conciliation Officer will require that all complaints to be made in writing for ease of investigation.

tipSecrecy
Conciliation Officers are bound by the secrecy provisions of the Act and shall not record, or divulge or communicate to any person any information acquired during the course of the conciliation process, except for the purpose of conciliation

Conciliation Officers:

  • understand the Worker’s Compensation system and how it relates to the  interests of workers, employers,
    WorkSafe agents and self-insurers.
  • ensure that all parties have a fair say at conference, and will encourage them to listen to other points of view and to search for ways to reach agreement.
  • help the parties to discuss the issues in dispute by asking questions designed to help exchange information; develop and examine options for resolution; and record the outcome.
  • do not judge or decide the merits of a case; they help the parties to find a satisfactory outcome to their dispute.
  • have to be satisfied that the person making the claim has taken all reasonable steps to settle the dispute through conciliation before the matter can be taken to court.
  • are supported in their duties by administrative staff who assist in obtaining relevant reports and information
    and exchanging them between the parties.
  • Conciliation Officers try to bring the parties to an agreement. If agreement cannot be reached, they can recommend a solution, or, in certain circumstances, direct that weekly payments or medical expenses be paid. They can also refer a dispute to the Medical Panels for a conclusive opinion, or issue a certificate allowing the
    parties to proceed to court

How to dispute or challenge workcover insurer decision in Victoria

tipDo not ever bother with an “internal review” by your insurance company – the outcome will be the same as the initial decision and will simply delay your entitlements further. Also when requesting an answer or decision (i.e. request for approval of medication, surgery, home help etc), be very stern in your correspondence and always – and clearly- imply that if your insurer (e.g Case Manager) fails to notify you of a decision within 28 days, you intend to lodge a Conciliation.

(AC Act: See PART 6–DISPUTE RESOLUTION).

The injured worker must request conciliation:

  •  in writing, on the correct form and signed personally by the injured worker (unless there are special circumstances). Forms are available from the workcover insurer, the Conciliation Service, some unions and service providers. You can download a form here: Request for Conciliation form (an electronic, editable version ). Note: it is worth engaging WorkCover Assist (and/or your lawyer) to help you fill in the form and to prepare (and represent you) for Conciliation.
  • within 60 days after the notice of decision was served (by the insurer) on the injured worker. (Note: an injured worker can apply to the senior conciliation officer asking that a late lodgement be accepted. All you need to do is explain the reason; i.e. unaware of rights, underwent surgery/treatment, are/were suicidal etc)

The Conciliation Service will try to set a conference within 28 days of receiving a request for conciliation. However, at times this may take up to 2-3 months, depending on the back log of case load.

The Conciliation Service will send the workcover insurer (and the injured worker)

  • a letter acknowledging receipt of the conciliation request
  •  a copy of the completed Request for Conciliation Form
  •  copies of relevant documents submitted by the injured worker and any other information affecting the dispute

Within 5 working days of receiving the copy of the request for conciliation, the workcover insurer must provide copies of the documents on which they based their decision to the Conciliation Service, and the injured worker or their representative.
(Note: Where the dispute is about access to information, the workcover insurer must provide copies of the exempt information in dispute to the Conciliation Service only (and not to the injured worker). Each document provided should be clearly marked as exempt (see section of the Act) of the Act (WIRC) and not to be released to the injured worker by the Conciliation Service.)

tipBeware that the workcover insurer will only provide SELECTIVE ‘material’ to the Conciliator, such as an old IME report and any other unfavourable documents/reports. It is therefore imperative that you ensure that you ask all your medical treaters for a medical report or letter to support your conciliation matter.

The following are examples of the documents that should be provided – note that this list is not exhaustive:

For rejections

  •     injured worker’s claim for compensation
  •     employer claim report
  •     WorkSafe initial medical certificate
  •     any information provided by the injured worker and/or employer
  •     notice and attachment relating to decision
  •     certificate of continuing incapacity
  •     treating doctor’s reports
  •     IME medical examination report
  •     circumstance investigation (where relied on in the decision)

For terminations

  •     injured worker’s claim for compensation
  •     employer claim report
  •     WorkSafe initial medical certificate
  •     recent medical certificate of continuing incapacity
  •     any information provided by worker and/or employer
  •     notice and attachment relating to decision
  •     treating doctor’s reports
  •     IME medical examination report
  •     impairment test / assessment
  •     circumstance investigation (where relied on in the decision)
  •     activities investigation (where relied on in the decision)
  •     any RTW (Return to Work) offers and/or OR (Occupational Rehab) reports/vocational assessments

For medical and like expenses

  •   worker’s claim for compensation
  •   employer claim report
  •   notice of decision
  •   medical evidence
  •   any information provided by injured worker and/or employer

For reductions or alterations to rate of compensation

For access to information

  •   notice of decision
  •   all exempt information

For all other decisions

  •   notice of decision
  •   any other relevant information
If your WorkCover insurer makes a decision in writing that you disagree with or fails to respond to a request within 28 days, you can ask to meet with a representative from the workcover insurance company to try and resolve the dispute. This meeting is referred to as Conciliation.

In order to arrange a Conciliation meeting, you must lodge a Request for Conciliation with the Accident Compensation Conciliation Service (ACCS). The form must be lodged within 60 days of the date of the insurer’s decision, although extensions are possible in some circumstances.

tipThe ACCS will/may request information from your treating doctors in preparation for the Conciliation meeting. However it is a lot easier to ask your treating doctors (GP, Specialist, Physio, Psychologist etc) for a medical report directly, explaining to the reason (Conciliation). Ask them to bill your workcover insurer directly. The more recent and favourable medical reports you have (and forward to ACCS) the greater your chances are at winning your dispute.

The ACCS will also arrange a time for you to meet with one of their representatives, together with a representative from the workcover insurer, yourself and occasionally a representative from the employer. This meeting is the “conciliation”. You can also arrange for assistance from your Union, Union Assist or WorkCover Assist and you are also allowed to take a support person with you. request-workcover-assist

We highly recommend WorkCover Assist (free). Please go to their website – request WorkCover Assist for requesting their assistance.

 

At the Conciliation, there are 5 possible outcomes:

  1. The matter/dispute could be adjourned;
  2. The workcover insurer could withdrawn their decision and reinstate your particular entitlement(s);
  3. The workcover insurer could make you an offer to settle the dispute for a limited amount of benefits;
  4. Your case could be referred to the Medical Panel if there are medical questions in dispute; or
  5. If you are unable to reach any of the above outcomes, the Conciliator will issue a Genuine Dispute Certificate, enabling you to issue Magistrates Court proceedings if you wish.

If you are required to take a day off work to attend the conciliation, you are entitled to be compensated by the Victorian WorkCover Authority for your reasonable transport costs (capped), and your loss of income (capped). You are only entitled to compensation for loss of income if you take a day of leave without pay, rather than paid sick leave, annual leave or weekly payments.

Visit the ACCS website for more detailed information.

did-u-know-workcoverWe do know from a reliable ‘insider’ that the less an injured worker has lodged conciliations, the more likely the injured worker will win the dispute. This is important to know. While Workcover Vic and their agents are well known to be vexatious litigants, you (the injured worker) do not want to come across as a “vexatious litigant”! This basically means that you should only lodge a conciliation if the matter in dispute is serious.

For example, you have 5 medical reports stating/requesting you need home help ASAP, but your case manager simply denies your home help for no reason other than at best a ‘home help assessor” grossly misrepresented report. You have permanent injuries, your leg (or whatever) is in a cast, our arm is in a sling and you suffer from surgical complications, and your spouse is doing his/her best to keep on top of the household duties. Go for conciliation! Same scenario could apply if you have 3 specialists agreeing you need surgery and your insurer denies it based upon a “general surgeon” IME report, go to Conciliation.

On the other hand if your case manager is denying you  a pair of slippers ($5) for your broken toe(s), do not bother, and just buy your flip-flops. Same scenario would apply if your CM denies you a box of prescribed Panadol – just buy it and try and be reimbursed.

 Now go forth and stand up for your rights!



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2 Responses to “How to dispute or challenge workcover insurer decision in Victoria”

  1. That’s a great article and I like the do’s and don’ts listed. The last Conciliation I went to was great, the Conciliator and WorkCover assist representative both welcomed me and introduced themselves and clearly explained things.
    I was extremely anxious and my mind was a mess while waiting my turn as I had not been to a Conciliation in years and in that time I had developed mental and trust issues. I went in expecting corruption and conspiracy but came out feeling somewhat relieved.

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  2. The same might be stated for other forms of trading as nicely, it’s fairly simple to purchase
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