On 1 September 2022, the Accident Compensation Conciliation Service changed its name to the Workplace Injury Commission (“WIC”). The WIC is responsible for attempting to resolve disputes in relation to workers compensation entitlements between an injured worker and the WorkCover insurer via conciliation or arbitration. The introduction of the WIC led to some additional changes for workers including:
- Third parties (including lawyers) are able to submit a request for conciliation on behalf of a worker;
- Lawyers can appear on behalf of a worker at conciliation (provided that agreement is provided by WIC);
- WIC is able to dismiss a dispute from conciliation;
- A worker can elect to send a dispute to arbitration (rather than issuing proceedings in the Magistrates Court) after having received a genuine dispute certificate through conciliation.
In our view, the most important of the listed changes is the introduction of an arbitration process for injured workers. The arbitration process is available to injured workers who were injured on or after 1 September 2022 and the dispute relates to:
- Weekly payments;
- Medical and like expenses (such as surgery, physiotherapy, or home help);
- Superannuation contributions;
- Interest on an outstanding amount.
Arbitration is not available in relation to:
- Access to information requests;
- Impairment benefits claims;
- Provisional payments;
- Return to work arrangements;
- Agreements reached at conciliation or arbitration;
- Medical Panel Opinions;
- A decision not to accept an application for conciliation or referral for arbitration;
- An issue that was previously finalised by a court or arbitrated;
- Injuries that happened before 1 September 2022;
- An injury that occurs outside of the Victorian Workers Compensation scheme.
The goal of the arbitration scheme is to provide a final decision to workplace compensation disputes that haven’t been resolved through conciliation. The arbitration scheme aims to provide greater access to justice through a low cost, prompt and informal process and as an alternative to going to court. The arbitration process allows for the worker, WorkSafe Agent or Self-Insurer to request legal representation at the arbitration. It falls to the injured worker, WorkSafe Agent or Self-Insurer to make the application to the Arbitrator after electing to proceed down an arbitration pathway.
It is apparent that there may be circumstances where the arbitration scheme is the appropriate avenue for an injured worker to attempt to resolve a dispute. We would anticipate that this situation may include medical disputes or claims for weekly payments of compensation for a limited financial value.
Fortitude Legal holds concerns about the imbalance in knowledge and power that eventuates from having a trained insurance expert being opposed to an injured worker in an arbitration hearing.
Current arrangements are for arbitration hearings to take place at the WIC premises on Spring Street in Melbourne. The hearing of a matter is expected to take place in person, although it is anticipated that administrative hearings may be able to be conducted online. Given that the access to justice is a prime focus of the WIC, it is important that immediate steps be taken to create arbitration rooms throughout Regional Victoria so that regional workers are able to be afforded the same opportunities as those of our metropolitan cousins.
Whilst we understand that there has not yet been an arbitration hearing conducted under the new system, we would anticipate that hearings will take place in the next month or two.
It is important that injured workers understand their rights prior to electing to go down the pathway of arbitration. If you, or someone you know, needs assistance with their WorkCover claim, please contact Fortitude Legal on 1300 020 618.