WorkCover conciliation outcomes in Victoria:
There’s a number of possible outcomes following a WorkCover conciliation.
Before going into detail about what they are (they’re covered later on in this article), lets take a step back and talk about the conciliation process.
What is a WorkCover conciliation conference?
Conciliation is a process that is designed to help workers resolve disputes that they may have with a WorkCover Insurer. The organization that manages the process is called the Accident Compensation Conciliation Service (ACCS).
Examples of typical issues that proceed to conciliation are;
– Non-payment or under payment of weekly payments.
– Rejection or termination of a medical expense
– Rejection or termination of a WorkCover claim
– Rejection of a claimed injury.
Any decision that is made by the insurer that you do not agree with can be taken to conciliation.
A recent statistic from the ACCS suggests that approximately 65% of disputes resolve at conciliation.
How do I start the WorkCover conciliation process?
If you have representation (like a union or lawyer) there is space on the form to note that.
If you don’t have a lawyer, or if your lawyer has advised that they will not assist you with conciliation, you can write “WorkCover Assist” or “Union Assist” (if you are in a union). These are bodies that provide free representation to people that are involved in the conciliation process.
At the bottom of the form, you’ll need to list what the decision is that you want to take to conciliation (see below).
You’ll also need to attach a copy of the decision notice (letter) from the insurance company, if there is one. If one exists and you don’t provide it to the ACCS, they may suspend the processing of your conciliation request.
Once the ACCS conciliation form has been completed and signed, you will need to send it off to the (ACCS). The form can be lodged as follows.
Email: [email protected]
Mail: ACCS, GPO Box 251, Melbourne 3001
Fax : (03) 9940 1000
You have 60 days to lodge a request for conciliation once you receive notice from the insurer of their decision.
If more than 60 days have passed, you can still lodge a conciliation request, but you will need to provide reasons for why the request was lodged outside the 60 day period.
A valid reason might be, for example, that you did not receive a copy of the decision within 60 days of it being made.
What happens once the request for conciliation form is lodged?
The insurer is then required to review the decision.
Within a few weeks after lodgement of the form, you should receive correspondence from the ACCS letting you know that the matter has been set down for conciliation conference.
If after a few weeks you have not heard from them, it’s not a bad idea to give them a call just to make sure that the paperwork was received.
Once the matter has been listed, if you are not available on that day and time, you should contact your representative or the ACCS directly and let them know so the matter can be rescheduled if it needs to be.
If you have a representative, they will usually obtain all the material that is required to support your case.
Relevant material might include, for example medical reports, x-rays, accounts and invoices. Your representative will also provide this material to the ACCS.
If you have any material that you think might assist, you should provide this material to your representative.
If you don’t have a representative you can just provide this material directly to the ACCS and they will provide copies to the insurer.
How do I prepare for the WorkCover conciliation?
The Accident Compensation Conciliation Service will send you some material that will explain how you can prepare for conciliation.
The material also explain a bit about the conciliation process in general.
In our opinion the best way that you can prepare for the conciliation is to learn what the key issues are that are in dispute.
It’s not uncommon for workers to go to conciliation with pages of notes listing argument after argument. However, the reality is that only a small fraction of what they have to argue is relevant to the dispute at hand.
For example, let’s say you’ve been paid weekly payments for a total of 130 weeks and the insurance company has terminated your entitlement to weekly payments because in their opinion you have a capacity for work.
It would make no difference to the weekly payments dispute if you went to conciliation and argued that your weekly payments have been getting paid late for the last couple of months, or that your physiotherapy treatment is not getting paid by the insurer.
The issue in this case would be a very narrow one.
That is, that you do not have a work capacity and that is likely to continue indefinitely.
That’s what you need to prove, and that is all you need to focus on.
And so you would be best assisted by having medical material from each of your treating practitioners that provide comment on your work capacity.
If you are not sure what the key issues are involved in your case, then you should spend some time doing a bit of research, or speak to your representative if you have one.
Who should I use as my representative for the WorkCover conciliation?
There is some flexibility as to who you can use for your representative at the conciliation.
You can represent yourself if you want.
Many people‘s first choice however is to have a lawyer represent them. However, some lawyers elect not to attend conciliation and instead will refer you to engage the services of one of the other representatives discussed further.
If you do wish to engage a lawyer, that lawyer will need to seek the consent of the Accident Compensation Conciliation Service (ACCS), and of the opposing party, in order to provide representation to you.
Another option is to engage WorkCover assist. WorkCover assist is a free service that is set up to assist people that have WorkCover conciliations in Victoria.
If you engage a WorkCover assist representative, they will contact you prior to the conciliation to discuss the matter and they will do most of the heavy lifting in relation to the conciliation on your behalf.
If you have a lawyer and you or they have engaged WorkCover assist to represent you, then WorkCover assist will usually work with your lawyer and discuss any offers with your lawyer before anything is agreed to in terms of settlement.
A final option is to engage union assist if you are in a union.
What happens during the conciliation?
If the WorkCover conciliation has been scheduled as an in-person conference, you should aim to get to the conciliation venue 30 minutes or so before the scheduled commencement time (or as otherwise agreed with your representative) so you can discuss matters with your representative if required. Due to COVID-19 in recent times, conciliations have been conducted over the phone.
If the conciliation is being conducted over the phone, and you just need to wait for your representative and the ACCS to make contact with you. The usual process for conciliation is:
The conciliation process usually starts with the representative from the ACCS explaining the purpose of the conference and what their role and powers are.
What typically then happens is that the insurer will then let everyone know the reasons as to why the decision was made.
Once the insurer has outlined the reasons behind the decision, it is then up to you or your representative to respond with the reasons why you dispute their decision.
Once this has occurred, the parties will then break into private conferences. This will then allow the conciliation officer to discuss the matter with both parties privately and separately.
If you have a representative it is a good idea to let them speak first. Once they have said what they need to, then you are welcome to add whatever you wish to.
Everyone at the conference will be provided with the opportunity to speak.
If offers are made, they are made through the conciliator, generally speaking, who then relays these offers between the parties.
The conciliation officer will usually bring the parties back together and confirm the outcome at the conclusion of the conciliation.
After the conciliation, the conciliation officer will then issue a certificate detailing what has been agreed upon. You should receive a copy of the certificate within a few days after the conciliation process has concluded.
WorkCover conciliation outcomes
If an agreement is reached between the parties to resolve the dispute, or if the insurer agrees to withdraw or alter their original decision, then the matter is at an end.
In some cases, the conciliator may propose a recommendation for resolving the dispute and the parties can consider whether to accept the conciliator’s recommendation. They do not have to.
Another possible conciliation outcome is that the conciliator issues a ‘direction’. This is done where the conciliator believes the the insurer has no arguable case. A direction compels the insurer to do something.
What if no agreement can be reached at the conciliation?
If no agreement can be reached at the conciliation there are a number of conciliation outcomes open to you.
It is possible to continue negotiating with the insurance company if it appears as though with further discussion the matter could resolve. For example, there may be evidence that is missing that needs to be obtained that might give the insurer the push it needs to make an offer that is acceptable to you.
Referral to the medical panel is a possibility if the matter in dispute is about a medical question. The conciliation officer has the final say about whether or not it is appropriate for a dispute to be sent to the medical panel.
The medical panel is an independent panel of doctors who will be responsible for assessing your injury or injuries and answering a medical question or questions that have been agreed upon by the parties and put to them by the conciliation officer.
The opinion of a medical panel is final and binding. It can take, depending upon the nature of the dispute, anywhere from 2-4 months on average before the panel provides their opinion and the matter is dealt with.
Once you have seen the medical panel, they have 60 days to hand down their opinion and generally speaking, the opinion of the medical panel is final and binding although in some cases and appeal of the decision can be made within 60 days.
The conciliator can issue a genuine dispute certificate which allows you to issue proceedings in the Magistrates’ Court.
It is important to note that it can take approximately 6-8 months in some cases for your matter to be reached in the Magistrates’ Court. We would strongly suggest that if you decide to go down this route, that you seek legal advice before doing so.
Does the employer attend conciliation and if so what is their role?
Employers are usually invited by the insurance company to attend conciliation conferences but in the vast majority of cases they do not attend.
If however they do attend, their role depends upon the nature of the dispute. They may be asked to verify certain details and other information that is relevant to the dispute.
However, typically if an employer attends a conciliation conference, the representative from the insurance company will do the majority of the talking.
If you have issues with your employer and do not wish to be in the same room as them, then it is important that you mention this to the ACCS or your representative prior to the conciliation so the appropriate arrangements can be made to keep you separate from your employer.
Can I claim costs for attending the conciliation?
Yes, you can claim some travel costs up to a maximum of $63 and loss of income up to $435 (this figure does change from time-to-time).
Can I go to conciliation more than once in relation to a particular dispute?
No, you can only conciliate a particular dispute once. Once it has resolved – whether by way of settlement or by it being referred off to the Magistrates’ court or the medical panel – that’s it.
However, there is no limit on the amount of times that you can go to conciliation for different matters.
What if it seems likely that the insurer will not change their decision before conciliation?
You can always contact the insurer or ask your lawyer to. You can ask the insurer to agree to refer the matter to the Medical panel or to the Magistrates Court without the need for a conciliation conference. This can save you several weeks or months.
You do not actually have to have the conciliation. You are able to reach agreement with the insurance company before the conciliation.
The caveat to this however is that the conciliator from the ACCS needs to agree to resolve the matter without the need for a conference. Sometimes they won’t do so.
This is usually because they have a view of the matter and think the parties would benefit from having the conference.
Do I have to attend the conciliation?
It’s your matter so it’s generally preferable that you attend the conciliation. Even if by phone.
However, if for some reason you can’t or don’t want to, your representative if you have one and discuss your concerns with them. It is certainly possible for a conciliation to go ahead without you present.
Can I take more than one matter to conciliation at a time?
There is no limit on the amount of issues that you can take to conciliation at the one time. However, you must make sure that every issue that you wish to address at conciliation is listed on the request for conciliation form.
If it is not listed on the request for conciliation form, then generally speaking the issue cannot be formally addressed at conciliation.
Should I send correspondance to the ACCS or the insurer setting out my position prior to the conciliation?
Unless you know the law and really know how to put your case, you should not put anything in writing and send it off to either the ACCS or the WorkCover insurance company.
This is because anything that goes to the insurance company can possibly be used down the track by them or other parties in relation to other parts of your claim.