All about WorkCover arbitration

WorkCover arbitration is an option open to an injured worker to utilise should they wish to dispute a decision made by the WorkCover insurer.

Arbitration is a service offered by the Workplace Injury Commission, and it aims to provide a person with a more informal process to resolve their WorkCover related dispute.

The rest of this page will look at what criteria must be met in order to dispute a decision via arbitration, and how to determine whether arbitration is the right fit for your dispute.

Eligibility criteria for arbitration

Arbitration isn’t open to everyone with a WorkCover claim.

There are certain eligibility criteria that must be met in order to dispute a decision via arbitration.

The relevant eligibility criteria are:

1. You must’ve suffered an injury on or after 1 September 2022. If your injury occurred prior to this date, then they are not able to refer a matter to arbitration.
2. You must’ve gone through the WorkCover conciliation process and a genuine dispute certificate must have been issued by the Workplace Injury Commission.
3. This genuine dispute certificate, referred to above, must’ve been issued no more than 60 days prior to the date of the lodgment of the arbitration request (although there can be exceptions to this)
4. You must not have issued court proceedings in relation the dispute. This means court proceedings specifically in relation to the dispute – as opposed to court proceedings relating to other parts of your WorkCover matter (eg; a common law claim).

In addition to the above criterial, the dispute must be related to one or more of the following issues:

• Weekly payments (eg: termination or reduction of weekly payments)
• Medical and like expenses. (eg: non payment of a particular type of medical expense by the WorkCover insurer, or termination of your entitlement to medical and like expenses)
• Superannuation contributions (eg: non payment of superannuation by the WorkCover insurer)
• Interest on outstanding amounts (eg: a claim for interest on outstanding weekly payments).

Arbitration is not able to deal with disputes relating to the following:

• Whether you are a worker under the act.
• Whether you have suffered an injury new line, whether an injury is an injury that arose out of or in the course of or due to the nature of your employment.
• Whether your employment was a significant contributing factor to an injury.
• Whether your injury was caused by mental injury for which there is no entitlement to compensation.
• Whether an injury is caused by disease for which there is no entitlement to compensation.
• Whether the injury is caused by a proclaimed disease.

How do I apply for arbitration?

Assuming the above criteria are met, in order to apply for arbitration, you should send a completed referral for arbitration form to the Workplace Injury Commission, along with a copy of your genuine dispute certificate.

Note that there is no cost to pursue your WorkCover dispute to arbitration.

The Referral for Arbitration form

This is a form provided by the Workplace Injury Commission. You can obtain a copy of the form from their website.

This is the form that you need to use to refer your matter to arbitration.

Here’s how to fill out the arbitration form

The first section of the form, as you can see below, asks for your details.

With respect to section 2 of the form, this asks for the dispute details. Here, we need to list the name of the WorkSafe agent or self insurer.

There’s a box for you to list your conciliation reference number in section 2. You can find this number on correspondence from the Workplace Injury Commission.

You should also be able to locate that on your genuine dispute certificate.

As mentioned above, one of the eligibility criteria to pursue an arbitration is that the genuine dispute certificate was not issued more than 60 days prior to the lodgment of the arbitration request.

If you are outside the 60 day period, then you’ll see in section 2 of the form there is a section for you to list any reasons for late lodgment of the arbitration form.

What is considered a valid reason or reasons for late lodgment will depend upon your individual circumstances.

Here’s a couple of examples: you don’t have a lawyer and are representing yourself and were unaware of your legal rights. Or, that you had a medical condition that made it difficult for you to lodge the request for arbitration earlier.

You should indicate either yes, or no to whether you have commenced court proceedings in relation to the dispute.

You should also indicate on the form as to whether the injury occurred on or after 1 September 2022.

You should in the next section, explain in detail why you believe the decision of the insurer is correct incorrect.

You should spend some time carefully filling out this section. You do not need to provide the most detailed answer in the world – but you should provide sufficient detail to explain why you believe the decision is incorrect.

If you need more space, then you can simply provide an attached document.

The next section asks what outcome you’re seeking at the arbitration.

This might be, for example, that the decision of the insurer to terminate your entitlement to weekly payments is incorrect, and to have the decision cancelled and for you to be backpaid weekly payments and to receive weekly payments again into the future.

Further on this page, we’ll look at what decisions the Workplace Injury Commission can actually make when it comes to arbitration.

If you have a representative such as a lawyer that can be noted in section 3 of the form.

Any documents that you wish to provide as part of the arbitration process (such as medical reports from your treating doctors) can be referenced in section 4 of the form.

Note that if you have a representative for the arbitration, you should work with them to complete this form rather than completing it yourself alone.

Once the form has been completed, where does it get sent?

Once the referral for arbitration form has been completed, then it can be emailed to arbreferral@ wic.vic.gov.au.

Alternatively, you can post it to GPO Box 251 Melbourne 3001 (ensure to keep a copy).

What if I have issues completing the form and am not represented?

If you do not have a representative assisting you with the arbitration and you have any issues with the completion of your form, then you can contact the Workplace Injury Commission.

What happens once the form has been sent off?

The Workplace Injury Commission will review the form and if they can accept the matter for arbitration, they will advise the parties.

The insurer will be asked to complete a form called the reply to referral for arbitration form where they can detail their views on the issues raised by you on the arbitration form. It’s a form where they indicate their position in relation to the issue/s.

You should be provided with a copy of this completed form. If you wish to, you’re able to provide a written response to what the insurer has noted on the reply to referral for arbitration form.

The Workplace Injury Commission indicates that they must hold an initial hearing within 30 days, and any further hearings will need to be completed within 60 days after that.

Once the hearing process has finalised, they need to make a final decision with 14 days.

Can I have representative such as a lawyer assist me and/or represent me at the arbitration?

You are able to have a representative at the arbitration. This can be any person that you wish.

However, if you want a lawyer to represent you at the arbitration, then permission will need to be obtained first from the Workplace Injury Commissions.

If you have a lawyer and want them to represent you (or you’re going to engage a lawyer), what you should do is ask them to seek permission to represent you at the arbitration.

Keep in mind that there will typically be a cost associated with representation by a lawyer at arbitration, but you should speak to your lawyer about what that cost might be.

Once permission is sought from the Workplace Injury Commission for a lawyer to represent you, they will take into account: the fairness of allowing a lawyer to represent you, whether being represented by a lawyer will help to resolve the dispute, the complexity of the dispute and any other circumstances that might be relevant.

If the Workplace Injury Commission does not provide permission for your lawyer to represent you at the arbitration, then the lawyer might still be able to provide assistance to you by way of advice and communicating with the Workplace Injury Commission on your behalf.

What decisions can the Workplace Injury Commission make?

The Workplace Injury Commission via the arbitration process is limited in the decisions it can make.

It can decide that the decision of the insurer is correct or incorrect. It can change or cancel a decision of the insurer.

It can demand that the insurer pay up to 52 weeks of weekly payments and up to $20,000 in medical and like expenses.

So if your dispute concerns more than 52 weeks of payments, and more than $20,000 in medical and like expenses, then perhaps arbitration is not the right forum for you for this particular dispute.

How do costs work with arbitration?

Just like with a conciliation there is no cost to lodge an arbitration.

If you engage a lawyer to assist and/or represent you, there may be a cost payable to that lawyer for work done, but this will vary between lawyers.

If you are successful at the arbitration, you will likely be entitled to have the insurer pay your costs.

If you are not successful at the arbitration, it is very unlikely that you will have to pay the costs of the insurer. If you have concerns regarding this, you should seek advice from the Workplace Injury Commission, or discuss with your lawyer if you have one.

Can a decision of arbitration be appealed?

If you go through the arbitration process, and you are unhappy, with the decision made, then, in limited instances you can appeal the decision to the Supreme Court.

You have 28 days, from the date of the decision to lodge an appeal.

Will your employer be at the arbitration?

Employers, like with Conciliation, are able to attend an arbitration.

This will be determined on a case by case basis, and if you have legal representation you should’ve discussed this issue with them.

Conclusion

Arbitration is an option open to people to utilise should they wish to dispute certain WorkCover related decisions. There are strict criteria that must be met in order to enable a dispute to be referred to arbitration.

To lodge an arbitration, the referral for arbitration form must be completed and lodged on the Workplace Injury Commission.