What you need to know about a Workers Compensation Independent Review

How the Workers Compensation Independent Review Service was established

The Workers 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.

WCIRS aims to ensure 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 (available through the Workplace Injury Commission).

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

Unless there are exceptional circumstances, injured workers who wish to apply to the WCIRS must do so:

• within 30 days of the date of the Genuine Dispute Certificate (GDC) issued by the Workplace Injury Commission (WIC) after conciliation, and
• within 6 months of becoming aware of the disputed agent decision being made (unless the Worker referred a dispute to Conciliation within 6 months which remains unresolved)

If the 'reviewable decision' is listed for a final court or arbitration hearing date or referred to the Medical Panel during an independent review, we will cease the review and take no further action.

Please see frequently asked questions for further information about the changes about the changes.

Which decisions are reviewable?

We refer to decisions that we can review as 'reviewable decisions', which include a decision made by or on behalf of WorkSafe:

• 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 we can't review include:

• to stop paying weekly payments because a worker's impairment is not 21% or more
• to stop paying weekly payments because WorkSafe considers that payments were obtained fraudulently
• about a worker's impairment benefits entitlement, including a decision 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.

What are the exceptional circumstances that may make it possible for a worker to apply for a WCIRS review outside of the deadlines?

Exceptional circumstances are those which are out of the ordinary, unavoidable or unexpected.

Whether there are exceptional circumstances will depend on the worker’s particular situation. They are circumstances that:

• are outside the worker's control
• the worker could not reasonably have prevented or accommodated, and
• they must have had a significant and demonstrably negative effect on the worker's ability to apply to WCIRS within the prescribed time limit

In the context of a WCIRS application, the fact that the worker has suffered an injury requiring treatment will not ordinarily be considered an exceptional circumstance.

See the WCIRS exceptional circumstances policy for further information.

How to lodge a request for an independent review

Lodging an application form with us is easy. You can lodge a request for an independent review using any 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 is important for us to get a complete understanding from your perspective. Please use this application form to share with the Independent review officer (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 lawyer to assist you with the review.

Once the application has been submitted

Within one 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 IROs will contact you (or your representative) within two 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 review all relevant information to determine whether or not the decision being reviewed is 'sustainable'. 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.

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.

How long will the review take?

The IRO will act as quickly as possible to 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

We will call you and/or your nominated person or representative to let you know the outcome of the review before we send it to you in writing.

Can an application be withdrawn?

We understand 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 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 withdraw a decision if they agree that the decision is not sustainable.

How the review outcome is implemented

Direction to overturn the decision

If the worker was receiving a weekly payment related to the decision or a medical or like service when the agent decision was made, then 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 overturned 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 was not to accept liability for a worker's claim (including a decision to 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, then 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

If the worker was receiving a weekly payment related to the decision or a medical or like service when the agent decision was made, then 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 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 agent decision was made, then 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

If the IRO decides the reviewable decision is sustainable and confirms the decision, it will remain in effect and unchanged. If the worker chooses to progress with their dispute, they can consider arbitration at the Workplace Injury Commission (known prior to 1 September 2022 as the Accident Compensation Conciliation Service or ACCS) or commence or continue an application in court.

We encourage workers to seek independent legal advice about any time limitations for lodging an application at court or for arbitration.

More information

If you have any questions or need any information, please contact the WCIRS 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.