Overview of the Workers Compensation Independent Review Service

5 June 2020

The Workers Compensation Independent Review Service (WCIRS) commenced operation on 30 April 2020. The establishment of the WCIRS by WorkSafe Victoria (WorkSafe) was in response to the recommendation made by the Victorian Ombudsman following a review of how complex claims are being managed and decided by WorkSafe’s appointed authorised agents (Agents).


There is some uncertainty on how the WCIRS will ultimately assist in the claims management process. In the meantime employers should carefully consider how it will manage its claims to ensure the decision of your appointed Agent is ‘sustainable’.

On 30 April 2020, the WCIRS commenced its operation.

The establishment and the functions of WCIRS are not reflected in the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act).

Workers who are dissatisfied with the decision of an Agent may use the WCIRS to make an internal review application to independently assess the process taken by an Agent in reaching its decision regarding a ‘reviewable decision’.

A worker may make an internal review application to independently review a disputed decision which is ‘reviewable’ after an unresolved conciliation at the Accident Compensation Conciliation Service (ACCS).

Upon review of a worker’s application, the WCIRS, where necessary, may use WorkSafe’s power to direct Agents to overturn decisions which would not be ‘sustainable’ or not have a ‘reasonable prospect of success’ at Court.

What are Reviewable Decisions?

A ‘reviewable decision’ is a decision made by an Agent on or after 3 December 2019 relating to (Reviewable Decision):

  1. a decision not to accept a worker’s claim, including a decision not to accept liability for an injury, condition or disease;
  2. a decision relating to weekly payments, including a decision: 
    i. to stop, suspend or refuse to pay weekly payments;
    ii. about the calculation of weekly payments; and
    iii. whether a worker has or does not have a current work capacity; or
  3. a decision relating to medical and like expenses or services.

A worker’s application may only be accepted by an Independent Review Officer (IRO) in the following circumstances:

  • after a Reviewable Decision has been through a ACCS conciliation and a Genuine Dispute Outcome Certificate (GDOC) is issued;
  • within two (2) years of the date of the GDOC being issued;
  • prior to a Victorian Magistrates or County Court listing the matter for a final hearing; and
  • prior to a referral to a Medical Panel for assessment.

 

Decisions that are not Reviewable Decisions

There are certain decisions which are not reviewable, if they fall in the following categories:

  1. a decision relating to a worker’s degree of impairment;
  2. a decision relating to the detail of a worker or their dependents;
  3. a decision resolved by agreement between an Agent and worker;
  4. any decision made by, or on behalf of, a self-insurer;
  5. any decision relating to a Serious Injury or Common Law Damages application; or
  6. any decision subject to a final Medical Panel determination.

A ‘reviewable decision’ must be ‘sustainable’ in order for it to be sustained

It is important to note that an IRO can only ‘direct’ an Agent to change its decision but not make an administrative decision by affirming, substituting or cancelling an Agent’s decision in replacement of a ‘new’ decision.
In other words, the IRO will make a recommendation after reviewing the available evidence before it.

The IRO must complete its review and provide its direction within 28 days.

In order for an Agent’s decision to be maintained, an IRO must be satisfied that the Agent’s decision is a “fair and reasonable decision based on the best available evidence”.

When determining whether an Agent’s decision is ‘sustainable’ an IRO may have regard to the steps taken by an Agent, including the following:

  • the Agent’s decision making process, including available information at the time the decision was made (claim form, medical reports, Medical Panel decisions and circumstance investigation reports);
  • an Agent’s Notice of Decision and the reasoning given to the worker;
  • correspondence between the Agent and the worker;
  • the worker’s direct feedback about what has occurred and why they feel the Agent’s decision is not right; or
  • the impact of, and use by an Agent on any new information received by it.

The IRO will also consider the quality of information an Agent considered when it arrived at its decision and whether any information was overlooked or irrelevant information was taken into consideration or misinterpreted and misapplied.

What happens after an IRO has completed its review?

Following a review of an Agent’s decision an IRO may do one of the following:

  1. find that an Agent’s decision is a ‘sustainable’ decision, meaning the Agent’s decision remains unchanged. In this case, the worker can still exercise their right to go to Court; or
  2. issue a direction and direct an Agent to overturn a Reviewable Decision.

If an IRO issues a direction to overturn a Reviewable Decision, an Agent may:

  1. accept the direction and take action in accordance with IRO’s recommendation; or
  2. disagree with an IRO’s direction and instead make a ‘new’ decision. In this case a worker may re-commence the conciliation process again within 60 days after a new Notice of Decision is served on the worker. 

The Agent must take action within two (2) business days following the IRO’s direction, including writing to the worker confirming it has commenced re-assessing and re-making the decision in accordance or contrary to the IRO’s direction.

Can an employer appeal an IRO’s direction?

No – The IRO’s direction is not appealable.

In the event that an Agent accepts the IRO’s direction, there is no relief for employers. There is nothing in the WIRC Act that allows for a decision of an IRO to be either appealed administratively or through any court process, except for the following limited circumstances:

  1. a worker is not a worker within the meaning of the law; or
  2. the claimed employer is not the worker’s correct employer at time of injury or death. 

Tips to assist employers to ensure a ‘sustainable’ decision

Due to the potential ramification which could arise from a direction being given by an IRO and an Agent accepting that direction, we provide the following tips to assist employers to prepare for a floodgate of potential internal review applications being lodged by workers who are aggrieved by an Agent’s decision:

  • Ensure that you review your current claims management process and determine whether your processes are able to respond to the matters an IRO may likely consider when assessing whether an Agent’s decision will be a sustainable decision.
  • Ensure that you have an open dialogue with your appointed Agent at the inception of you receiving a claim and discuss any potential issues or concerns about the claim.
  • Communicate to your appointed Agent at the onset that prior to it making a determination about a claim that you are provided an opportunity to make submissions and/or any information that would assist your Agent to make an informed assessment and decision about a claim.
  • Provide the Agent with any new information which may become available to the employer (not previously provided to the Agent).
  • If the worker’s claim is complex, conduct your own circumstance and/or surveillance investigation (under Legal Professional Privilege) at the commencement of the claim, to have a clear understanding of the facts surrounding the injury and to properly assess liability. 

Hentys Lawyers welcomes the opportunity to provide free face-to-face or online training on the WCIRS process.

For further information, please contact our experienced Workers Compensation team by emailing hjk@hentys.com.au.