How can I deal with disputes with WorkCover? < Back

How are disputes with WorkCover resolved?
Resolution of a dispute by a court should be a last resort as there are a number of alternative dispute resolution mechanisms available. With the proper guidance most disputes with WorkCover should be resolved without a court hearing. Most disputes are initially referred to the Accident Compensation Conciliation Service, which will attempt to resolve a dispute in an informal manner. It is necessary to lodge an application for conciliation (click here for information on how to obtain a form and the process)

Generally, a 60-day time limit applies to refer a matter to the Conciliation Service. A form for the referral can be obtained from WORKFORCE LEGAL by ringing 1800 134 204.

Lawyers are generally not permitted to appear at most conciliation hearings, but two excellent and free advocacy services are available to assist you. Union Assist is an advocacy service for union members and WorkCover Assist is able to help other employees. If you are unhappy with the outcome of conciliation, you are able to pursue your claim by court action.

Some disputes can also be resolved by referral of the dispute to the Medical Panel. Whether or not you should have your dispute referred to the Medical Panel is a complex issue, and depends on the circumstances of your particular case. A determination by the Medical Panel is final and conclusive and cannot be appealed against except in the rarest of cases. The Medical Panel can make binding determinations on issues such as whether you are incapacitated for work, whether incapacity is permanent and/or work related. For more information about referring to a Medical Panel click here. You should contact WORKFORCE LEGAL for advice, preferably before you are referred to the Medical Panel. In some instances detailed written submissions should be made to the Medical Panel prior to a consultation with them to ensure relevant considerations are taken into account.

If your claim is rejected or any of your entitlements refused, contact WORKFORCE LEGAL for obligation free assistance.

The conciliator in my case has made a direction, what does this mean?
When a dispute is referred to the Accident Compensation Conciliation Service, every attempt is made to resolve the dispute. Generally speaking a Conciliator cannot make a determination about a claim. In some very tightly controlled circumstances a Conciliator can issue a 'direction', ordering the limited weekly payments of compensation or medical expenses be paid. When a direction is issued, it means that the WorkCover agent or Self Insurer must pay as directed unless they obtain an order from a court, usually the Magistrates' court, authorising them not to pay.

A Conciliator can only issue a direction if he or she believes that the WorkCover agent has 'no arguable case'. If a Conciliator thinks that that the WorkCover agent has an argument, which is unlikely to be accepted by Court, they cannot issue a direction as the agent has an arguable case.

I have been served with court papers seeking a 'revocation of the direction' what does this mean?
When a direction is issued by Conciliator the case will automatically be reviewed by the legal Division of the WorkCover Authority. If the Division believes that it has an arguable case it will instruct its Solicitors to file an application to the Magistrates court seeking a 'revocation' of the direction. This usually is done within 7 days of the Conciliator's order.

If an application is lodged at the Magistrates court it is usually heard very quickly by the court. This can sometimes mean that a WorkCover recipient will be served with court documents listed for hearing on the next day or within a few days time.

This can be very distressing and cause unnecessary panic. If this occurs you should contact an expert WorkCover lawyer without delay. Workforce Legal can act for you at short notice. If you receive court documents or you think you are likely to receive them, contact Workforce Legal on (1800 134 204). If you have a lawyer acting for you already, you should immediately contact him or her and advise them that you have the court proceedings. They will be able to represent you at court.

You will not usually be required to come to court as neither you nor your lawyer is required to prove anything to the court at this stage. WorkCover or the Self Insurer must prove that they have an arguable basis for disputing your entitlement. If the Magistrate considers that an argument can be presented by WorkCover, even though it will be unsuccessful in the long run, they must revoke the direction in order to provide an opportunity to the parties to present their case.

Will I be liable for legal costs for this revocation hearing?
No, you should not be liable for the legal costs of WorkCover or your own lawyer for this case. The WorkCover legislation makes it clear that you are entitled to have your legal costs paid irrespective of the outcome of the case.

Can legal papers for the "revocation" case be served on a lawyer?
A Lawyer is able to accept service of court documents on your behalf. If you have received a direction and think it is likely that WorkCover will apply to revoke that direction, you could advise the Conciliator that you have instructed a lawyer to accept service of the documents on your behalf. The Conciliator would then advise the WorkCover agent about that arrangement and this would avoid court documents being served on you at your home. Alternatively, you or your lawyer could ring the WorkCover agent and advise that your lawyer is authorised to accept documents.

If you have received an application for revocation or are likely to do so contact WORKFORCE LEGAL on 1800 134 204 for an obligation free discussion about your situation.

Can I refer my claim to a Medical Panel?
Referring a matter to the Medical Panel is one of the ways in which a dispute with WorkCover can be resolved. A matter can be referred to the Medical Panel by
  • A Conciliator at the Accident Compensation Conciliation Service.

  • A court at the request of either party.

  • By a WorkCover Impairment Benefits Officer at the request of a claimant who is disputing their percentage permanent impairment rating.
Any issue referred to a Panel must be a 'medical question' as defined by the WorkCover legislation. Where there is a major factual dispute, this issue may often not be referred to the Medical Panel as it is more difficult for the Panel to decide factual disputes.

Should I seek for my dispute to go to a Medical Panel?
This is a complex issue. A decision of the Medical Panel is usually binding on the parties and a court is generally required to follow its decision. Therefore great care is needed in determining whether to refer a matter to a Medical Panel. If a claim for compensation is rejected or payments are terminated, a claimant is sometimes offered a choice at conciliation of either referring the matter to the Medical Panel for a final decision or referring the matter to court.

Choosing between these two options can be extremely difficult. Firstly, the option of taking a matter to court is only a real option if, either you are able to afford to conduct litigation or a lawyer is prepared to run your case on a 'No Win - No Charge' basis. Secondly, it is important to recognise that even if you took the matter to court it may still be decided by a Medical Panel because the other party has made that request. If a request is made to a court, it has no option but to refer.

In making a decision about which option to pursue, it is important to take into account the nature of the dispute and the type of evidence that is available. It is also very important to consider the effect that a positive or negative Medical Panel decision can have on other aspects of your claim. If possible, obtain advice from a lawyer about the merit of each option. Individual decision makers, whether at a Medical Panel or a court, can have different views. This difference is only natural for human beings. This can affect the outcome of a determination. The outcome from a sympathetic Medical Panel will be better than from an unsympathetic Judge. Conversely, the outcome from a sympathetic Judge will always be better than from an unsympathetic Medical Panel. It is not possible however, to know the composition of either forum in advance! What can be said however is that when the broad spectrum of decisions of both bodies is examined - it is difficult to see any difference in the success rate of each! Speaking in general terms, both courts and the Medical Panel tend to provide fair and consistent outcomes.

What will happen when I attend the Medical Panel?
When a matter is referred to a Medical Panel for a decision to be made, it primarily involves a full medical examination of the claimant to the extent relevant for a claim. The Panel will be made up of a number of Medical Practitioners which will usually reflect expertise in the different areas of injury that a claimant has specified. Medical Panel doctors display a high level of independence. Their medical examinations tend to be very careful, professional and exhaustive medical assessments. Medical Panels are also very sensitive to issues relating to gender and cultural backgrounds. Indeed many claimants report a real difference between the often hasty and superficial examinations conducted on behalf of WorkCover earlier in a claim and the thorough Medical Panel examinations.

It is possible for a claimant, usually through their lawyer, to make a written submission to a Medical Panel about a matter. This usually only occurs if there is some particular or unusual aspect to the matter which needs to be drawn to the Medical Panel's attention. If a written submission is made to a Medical Panel it is important to keep the submission very brief in order to ensure that it has maximum impact.

The way in which a claimant presents a Medical Panel examination is extremely important. It is only natural for a claimant to think that they have to argue their case when they attend the panel. All medical practitioners have various methods for checking the accuracy and consistency of the claimant's presentation.

It is important to resist the very natural tendency to want to make sure that the Panel understands the full scope of the effects of an injury. What the Panel is interested in, is the careful and precise analysis of very specific symptoms. A very accurate description of the symptoms, presented without any embellishment will mean that the Panel will conclude that the claimant is reliable and honest. It is normal for specific injuries to have symptoms in a very specific anatomical pattern. For example, the distribution of pain in a leg from a back injury usually will be quite localized depending on the level of the disc involved. Simply, asserting that the entire leg is sore will not be as effective as giving a very precise and accurate description of the specific areas affected.

Can I appeal the decision of a Medical Panel?
The decision of the Medical Panel can only be appealed on very narrow grounds. It is only possible to appeal the decision if the Panel has made legal error. It is not possible to appeal the decision of a Panel solely on the basis that it came to the wrong conclusion. In order to appeal a decision of a Medical Panel, it is necessary to demonstrate that they have made procedural error. This type of appeal is very technical and must be made to the Supreme Court within strict time limits (click here for more information). If an appeal to the Supreme Court is upheld, the decision of the Medical Panel will be quashed and the matter sent back to the Medical Panel for a further decision. It is normal for the new decision to be made by different personnel at the Medical Panel.

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