What you need to know about a Workers Compensation Independent Review

Information and guidance about how the Workers Compensation Independent Review Service (WCIRS) can assist, what we do and how and when you can seek an independent review of certain decisions.

How the Workers Compensation Independent Review Service was established

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

Recommendation 3 of this report recommended that WorkSafe establish an independent business unit to independently review disputed decisions when requested by workers after an unresolved conciliation and, where necessary, use WorkSafe's power under the Accident Compensation Act 1985 and Workplace Injury Rehabilitation and Compensation Act 2013 (the compensation law) to direct agents to overturn decisions which would not be sustainable or have a reasonable prospect of success at Court.

It's important to the WCIRS that workers feel understood and supported.  If a worker believes that a decision has been made that isn't quite right, we are here to assist.

Who are the Workers Compensation Independent Review Service?

We are a team located within the Independent Review Division at Worksafe Victoria. Our service provides injured workers with the opportunity to ask for a free and impartial review of certain disputed 'reviewable decisions' under the compensation law that haven't been resolved during the conciliation process.

Understanding the independent review process

Who can we assist

An independent review of a 'reviewable decision' can be requested by a worker to whom the decision relates or by a nominated person or representative who is 18 years or older. If you're under the age of 18 years or are living with a legal disability, your legal guardian or a person or representative over the age of 18 years nominated by your legal guardian will need to represent you.

When we can 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 a conciliation at the Accident Compensation Conciliation Service (ACCS), and
  • within 2 years of -
    • an ACCS Conciliation 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 an ACCS Conciliation Officer 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 a medical question relating to the decision to 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, we will stop the review and take no further action.

Which decisions are reviewable?

Not all decisions can be reviewed by our team – however, we will always try our best to assist where we can.

We refer to decisions that we can review 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 like (similar) service

Examples of decisions that can't be reviewed by our 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 our service can assist, we encourage workers to reach out to us on 03 4243 7061 so we can discuss your options.

How to lodge a request for an independent review

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

  1. Digital form
  2. PDF application form
  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 to us by email or post. If you require a translator when calling us, please let us know when we answer and we'll be happy to assist.

It's important for us to get a complete understanding of where things have fallen down from your perspective. Please use this application form to share with the IRO why you believe an incorrect decision has been made.

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.

Once the application has been submitted

Within one (1) business day, our team will be in touch with you (or your nominated person or representative where applicable) to confirm in writing if the application has been accepted. Once an application has been accepted, one of our Independent Review Officers (IRO) will contact you (or your representative) within two (2) business days to discuss the application.

What to expect during the review

The role of an Independent Review Officer

The role of the IRO is to gather all relevant information to determine whether or not the decision being reviewed is 'sustainable'. Generally speaking, a sustainable decision means that it is a fair and reasonable decision that is based on the best available evidence. The review will also consider whether the decision has been clearly communicated and explained and made in accordance with the compensation law.

The IRO is not able to make a new decision or change or alter decision. This means that the IRO can't make a decision about whether or not you are entitled to a payment or service or that your claim should have accepted.

More information about how an IRO assesses the sustainability of a decision can be found in 'How the Workers Compensation Independent Review Service assesses and reviews decisions'.

Conducting the review

In order to complete a thorough review, the IRO will need to understand as much about the decision as possible.  An IRO will review the relevant information on the claim file and any supporting information provided to them by you or your representative.

Where necessary, an IRO may request further information or clarification from WorkSafe, the Agent or you (or your nominated person/representative) to help them make their decision.

The IRO will independently review how the agent made the 'reviewable decision' by looking at things like:

  • the information that was available and considered
  • the quality of any information considered
  • any information that may have overlooked
  • whether any important information was missing
  • the use of certain kinds of information, such as surveillance
  • how the 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 act as quickly as possible to investigate and review the decision. We understand that you are waiting for a response and will do everything that we can to discuss our findings with you promptly.

Unless advised otherwise, 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

You and/or your nominated person or representative will also be provided with the outcome of the application in writing. We will also make reasonable attempts to notify you (or your nominated person / representative) of the decision via telephone before we provide our written decision.

Can an application be withdrawn?

We understand that things can change over time. If you decide you no longer wish to have a decision reviewed, you can choose to withdraw your application at any time before a final outcome is communicated. A request to withdraw the application should be made in writing to [email protected]. Please telephone us on 03 4243 7061 if you need any assistance.

Completing the review

Possible outcomes

There are two possible outcomes once the IRO has completed their investigation. Based on the findings of the review, the IRO has the power to:

  • disagree with the Agent's decision (find that the decision is not a 'sustainable decision') and direct the Agent under the compensation law to overturn it, or
  • confirm the Agent's decision

At any time before the end of the review, an Agent can also to withdraw a decision if they agree that the decision is not sustainable.

How the review outcome is implemented

Direction to overturn the decision

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

The effect of the IRO's decision to overturn a reviewable 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:

  • commence restoring the payment or service, including payments or services that the Agent would have been required to pay if it had not made the withdrawn decision, in accordance with the compensation law, and
  • write to the worker confirming this has occurred

An Agent may also choose to make a new decision after a decision is overturned and write to you to let you know what the new decision is.

If the reviewable decision that is overturned 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

Withdrawal of decision by Agent

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

The effect of an Agent's withdrawal of 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 withdrawn the Agent will:

  • commence restoring the payment or service, including payments or services that the Agent would have been required to pay if it had not made the withdrawn decision, in accordance with the compensation law' and
  • write to the worker confirming this has occurred

An Agent may also choose to make a new decision after a decision is withdrawn and write to you to let you know what the new decision is.

If the reviewable decision that is 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 withdrawn 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

Confirming the decision

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 dispute, they can commence or continue an application in court.

We encourage workers to seek independent legal advice from a legal practitioner about any time limitations for lodging an application at Court. We are unable to provide legal advice to workers or their nominated person or representative.

More information

We understand that matters such as these can seem quite complex. If further clarification, information or assistance is required, please contact our service team directly on 03 4243 7061 between 8:30am and 4:30pm, Monday to Friday. If you require a translator service, please let our team know when you call.

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