How the Workers Compensation Independent Review Service assesses and reviews decisions

Background

The Workers Compensation Independent Review Service (WCIRS) was 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 a '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.

WCIRS aims to ensure 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 deciding if the reviewable decision is sustainable, the IRO will consider:

1. the decision making process
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 reasons why they feel that the decision is not right
4. what happened at conciliation and
5. any new information which has become available since the reviewable decision was made

What information will WCIRS consider?

The WCIRS IRO will consider all available information which is relevant to the reviewable decision. As a general guide this may include:

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 and/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 was taken into account 
9. whether any relevant information was misunderstood
10. whether any important information was missing when the reviewable decision was made
11. 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
12. what happened at conciliation
13. whether any new information was taken into account after the decision was made

What is a 'sustainable' decision?

A ‘sustainable decision’ is one which has a reasonable prospect of being maintained by a court, taking into account the information that was before the agent and any further information provided to the IRO during the review period.

What happens if a reviewable decision is sustainable?

If the IRO decides that the decision is sustainable, the decision will remain in effect and unchanged. If the worker still disagrees with the decision, they can commence or continue an application at arbitration or in court in accordance with the Genuine Dispute Outcome Certificate (GDOC) issued by the Workplace Injury Commission (WIC) Conciliator.

What happens if a reviewable decision is not sustainable?

If the IRO decides that the decision is not sustainable, they will direct the agent to overturn the decision. This means that the reviewable decision will be cancelled and will no longer apply or have any effect.

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 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; and
• write to the worker confirming this has occurred; and/or
• write to the worker with a new decision

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 to 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 decision was made, within 2 business days of the decision being overturned the agent will:

• start making a new decision in accordance with the IRO’s review; and
• write to the worker confirming that this has occurred