How the Workers Compensation Independent Review Service assesses and reviews decisions

An impartial, quick and free service that allows for an independent review of certain 'reviewable decisions' made by or on behalf of WorkSafe under Workplace Injury Rehabilitation and Compensation Act 2013 or the Accident Compensation Act 1985 that are unresolved after a Conciliation.

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Background

The Workers Compensation Independent Review Service WCIRS has been established by WorkSafe Victoria in response to Recommendation 3 of the 'WorkSafe 2: Follow-up investigation into the management of complex workers compensation claims' Victorian Ombudsman report dated 3 December 2019.

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)."

The independent review service encourages workers to share their concerns with us so we can understand what has happened.  This will allow us to review the decision that has been made by the agent and to establish whether or not a decision made about a worker’s claim or compensation entitlements are sustainable.

For the purposes of an independent review, the assessment of whether or not 'reviewable decision' is sustainable will involve an Independent Review Officer (IRO) assessing the sustainability of a decision in a way that ensures that the decision-making process and the decision itself was made in a fair, reasonable, clear, impartial and qualitative way.

Purpose

The purpose of this page is to explain how WCIRS will conduct an independent review and provides information about how it determines whether or not a decision is sustainable.

It's important to the WCIRS that workers feel understood and supported through the review process. If a worker believes that a decision has been made that isn't quite right, we are here to listen, understand and, where required, take steps to make things right.

Guiding Principles: How will we apply sustainability considerations

The WCIRS considers requests from workers to review a decision in an independent and impartial way and which places the worker at the centre of the independent review process.

When assessing whether or not the reviewable decision is sustainable, the IRO will consider things like:

  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 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.

In determining whether a reviewable decision is sustainable, the WCIRS will assess the quality and clarity of the decision and whether it has been made and/or maintained by the agent fairly, reasonably and impartially.

Information considered when assessing the sustainability of a decision

There is no limit on the scope of the information that an IRO is able to consider when conducting an independent review of a 'reviewable decision', so long as that information is relevant to the issue that is in dispute. It is important that the IRO considers all relevant information from the worker and Agent in order to understand what has occurred and to make an impartial decision about the expected outcome.

However, as a general guide, the IRO will take into account the following types of considerations (the list is not exhaustive):

  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?

Generally speaking, the WCIRS considers a sustainable decision to be a 'reviewable decision' that, when assessed by an IRO in accordance with 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 a Provisional Payments will only be assessed by whether the decision has a 'reasonable prospect of being maintained by a Court' test.

What happens if a reviewable decision is found to be a sustainable decision?

Once the IRO has collected all of the relevant information and is satisfied that they have a complete understanding of the workers claim, they will make a decision on the outcome of the review.

In circumstances where the IRO completes an investigation and determines that the decision is sustainable, the decision will remain in effect and unchanged.  If the worker chooses to progress with their complaint, they can commence or continue an application in Court in accordance with the Genuine Dispute Outcome Certificate (GDOC) issued by the Accident Compensation Conciliation Service (ACCS) Conciliator.

Occasionally, when conducting an independent review the WCIRS might determine that a reviewable decision is sustainable but might also identify minor mistakes (such as spelling or typographical errors) in the notice of decision that do not undermine the sustainability of the decision. In those circumstances the IRO can conclude that the reviewable decision is sustainable, identify any minor errors in their reasons for decision and explain why they do not believe they undermine the sustainability of the decision. The worker is still able to continue with or issue proceedings in the Magistrates' Court or County Court in accordance with the GDOC issued by the ACCS.

What happens if a reviewable decision is found to not be sustainable decision?

If a 'reviewable decision' is determined by the WCIRS not to be a sustainable, the agent will be directed to overturn the decision. This means that the reviewable decision will be cancelled and will no longer apply or have any effect.

In the event that a decision is overturned by the IRO or it is withdrawn by the agent, there are several steps that need to take place.

The effect of the IRO's decision to overturn a 'reviewable decision' (or where an agent withdraws the decision) will be different for each worker's application and, generally, depends on whether the worker was already receiving a payment or service at the time 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 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 and communicate it in writing to the worker.

If the reviewable decision that is overturned or withdrawn relates to a decision not to accept liability for a worker’s claim (including a decision not accept liability for injury, condition or disease) or not to pay a weekly payment or for a medical and like 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.

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