Workers’ Compensation – Workplace Injury

Dispute resolution

If a dispute arises regarding the agent’s decision to accept or reject a claim, it is in everyone’s interest to resolve it fairly and quickly to avoid litigation.

The return to work coordinator must support a worker throughout the claims process. This obligation extends to workers who are participating in a workers’ compensation dispute.

If the worker and the agent are unable to reach a resolution, the worker has the right to appeal the decision through the options below.

If the worker exhausts all dispute options and the claim remains rejected, the return to work coordinator will no longer have any obligations under the WIRC Act and the school must support the worker in accordance with the same obligations relevant to staff with non-work related injuries.

Workers can access further information about dispute resolution via WorkSafe’s Introducing WorkSafe – A guide for injured workers page.

Please refer to the Return to work issue resolution procedure (DOCX) for guidance on the complaints process.

Senior review (agent internal review)

A worker has the right to request, verbally or in writing, an internal review of the decision made by the agent by a more senior person at the agent, who was not involved in making the decision subject to the dispute.

The senior agent reviewer will inform the worker in writing of their decision to either maintain, withdraw or vary the original decision. The worker may accept the senior reviewer’s decision or may take the dispute to conciliation.

Conciliation

Conciliation is an informal and free service, bringing together the worker, the agent, the return to work coordinator and any representatives for those involved in the dispute. The aim of this service is to facilitate an agreement between the disputing parties. Conciliations are run by a Senior Conciliation Officer at the Workplace Injury Commission.

The worker can apply for conciliation if:

• the agent has made a decision on their claim, and they do not agree with that decision or
• the agent has not responded to a request or has not made payment on their claim within a reasonable time.

Applicants can submit a request for conciliation to the Workplace Injury Commission with a conciliation form (PDF) within 60 days of the agent’s decision and if more time is needed, they must apply for an extension of time.

For more information, refer to the Workplace Injury Commission website.

Possible conciliation outcomes

• Resolved: If the dispute is resolved by agreement, the Workplace Injury Commission will issue a certificate outlining the agreement and all parties are bound to abide by the agreement. Refer to Leave and payroll management for further details regarding processing payments.
• Pause: The conciliation officer may pause the conciliation so more information can be gathered.
• Recommendation: The conciliation officer may provide a recommendation and if this is accepted by the injured worker and the Agent, then the matter will be considered as resolved.
• Direction: In the case where the conciliation officer believes the agent’s decision is void as there is no information supporting their decision, they will have the power to make a decision, and this is called a direction.
• Medical panel: A medical dispute may be referred to a medical panel for a decision. A referral to the medical panel is at the discretion of the conciliation officer. The doctors who form a medical panel are independent of the Agent and WorkSafe Victoria. The medical panel will provide a final and legally binding opinion that will ordinarily resolve the medical issue(s) in dispute. The medical panel will provide its opinion to the conciliation officer.
• Has not been resolved: If the dispute has not been resolved, the conciliation officer will discuss the options with the injured worker. These options include:
  • Workers Compensation Independent Review Service (WCRIS)
  • Workplace Injury Commission’s Arbitration service
  • For the injured worker to access the above options, the conciliation officer must have issued a Genuine Dispute Certificate.

Return to work coordinators can contact the Workers’ Compensation team for assistance with conciliations.

Arbitration

If a dispute has not been resolved in conciliation, the injured worker may choose to take the dispute to arbitration if:

• the date of injury was on or after 1 September 2022
• there is a Genuine Dispute Certificate from conciliation
• the injured worker hasn’t applied to court for the same dispute
• the dispute involves a claim for weekly payments, medical expenses, superannuation or interest.

The arbitration officer will manage the dispute between the parties and must conduct arbitrations impartially and independently.

Litigation

Litigation is the beginning of a legal dispute between 2 or more parties and the aim is to resolve the matter through the courts.

The Magistrates’ Court and County Court can hear and determine any matter arising out of a decision made by the agent or the department, or a direction made by a conciliation officer. Once a court complaint or application has been lodged, WorkSafe Victoria will appoint an external law firm to defend the matter on behalf of the department. The department’s role in litigation is to provide the external law firm with the necessary information to defend the case.

Return to work coordinators can contact the Workers’ Compensation team for support through legal hearings.

There are 2 types of litigated claims:

• A statutory claim is when the injured worker has the right to make a claim for benefits regardless of who is at fault for their injuries. Statutory benefits include payment of income lost as a result of the injury, medical and treatment costs, travel expenses and a lump sum to compensate for permanent impairment caused by the injury.
• A common law claim is made when the injured worker claims they should be paid additional amounts for personal injury caused by the wrongful act or omission (or negligence) of another person (the department). The worker can seek payment for impairment, pain and suffering only, or pain and suffering and economic loss.

Impairment benefits and entitlements following a work-related death

Information is available from WorkSafe Victoria regarding entitlements due to a permanent impairment following a work-related injury or illness and the support and financial assistance for those who qualify following the death of a worker as a result of a work-related injury or illness.

Return to work coordinators can contact the Workers’ Compensation team for further support.