Dispute resolution provisions

New South Wales

Liability: If liability for a claim or a request for compensation is disputed, the worker will receive a copy of all information relevant to the decision from the insurer. This means that all information is exchanged and considered before an application for dispute resolution is lodged with the Personal Injury Commission (the Commission). A worker can ask the insurer to review the decision prior to seeking a resolution through the Commission. A worker may also seek assistance from the Independent Review Office (IRO), which provides access to information and access to legal assistance for workers regarding claims and disputes.

If the dispute is about the degree of permanent impairment, a Commission-appointed Approved Medical Specialist (AMS) will review all medical evidence, assess the worker and issue a medical assessment certificate that is conclusively presumed to be correct on the degree of permanent impairment. An AMS may also be appointed to assess medical disputes.

The Commission is an independent Statutory Tribunal, which deals with disputed workers’ compensation claims (except for coal miners and Bush Fire and Emergency Rescue Service Volunteers). Any party to a workers’ compensation dispute can lodge an application to the Commission, except for disputes about permanent impairment, which can only be lodged by a worker.

Appeal provisions exist in relation to decisions of Commission arbitrators and AMS under limited grounds. Appeals against the decision of an arbitrator are determined by a Presidential member of the Commission. Appeals against the assessment of AMS are determined by an Appeal Panel comprising two AMS and one arbitrator. Funding for legal representation for a worker is available through the Independent Legal Assistance and Review Service (ILARS), which is administered by the (IRO).

Coal miners: The District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the Workers Compensation Act 1987).

Dust Diseases: Workers who disagree with a decision made by the Dust Diseases Authority or its Medical Assessment Panel can lodge an appeal in the District Court of NSW in accordance with s8I of the Workers’ Compensation (Dust Diseases) Act 1942.

Bush Fire and Emergency Rescue Services Volunteers

The District Court has exclusive jurisdiction to examine, hear and determine all Bush Fire and Emergency Rescue Services Volunteers matters.

Work capacity decisions: A work capacity decision can only be reviewed if the worker makes an application for the decision to be reviewed. The worker can choose to have the decision reviewed by a different person within the insurer, or lodge a dispute with the Personal Injury Commission.

Victoria

Court proceedings must not be commenced (except in the case of a fatality or lump sum claims under the old Table of Maims) unless the dispute has been referred for conciliation and the conciliation officer certifies that the worker has taken all reasonable steps to settle the dispute — s273.

Conciliation: The worker or person making the claim may refer the dispute for conciliation to attempt to resolve the dispute — s282.

If the dispute is resolved by agreement, the Accident Compensation Conciliation Service (ACCS) will issue a certificate outlining the agreement. Failing agreement, the ACCS may give directions, make recommendations or decline to give directions or recommendations or refer a medical question to the Medical Panel — ss284, 294 and 296.

A direction of the ACCS is binding on the parties unless subsequently revoked by the ACCS or a Court — s299.

Where a claimant has taken all reasonable steps to attempt settlement of the dispute but agreement cannot be reached, the ACCS will issue a certificate permitting the claimant to commence court proceedings — s273

Unless a Court orders otherwise, a dispute can be conciliated notwithstanding that court proceedings have been commenced — s294(2).

Subject to the County Court Act 1958, the County Court has exclusive jurisdiction to inquire into, hear and determine any question or matter arising under the Workplace Injury Rehabilitation and Compensation Act 2013 or Accident Compensation Act 1958 — s264. The Magistrates’ Court has the same jurisdiction as the County Court and additionally deals with disputes regarding access to claims documents, claims for reimbursement of expenses incurred by non-family members of a deceased worker and civil proceedings relating to discriminatory conduct against a worker — ss266 and 578.

Medical Panels: ‘medical questions’ as defined in s3 may be referred to Medical Panels. Disputed impairment benefits assessments under s203 and any medical question arising in a conciliation dispute relating to a worker’s entitlement to weekly payments for reduced work capacity after 130 weeks under s165 must be referred to Medical Panels. Medical Panels must form binding opinions on medical questions referred — s313.

Queensland

Internal Review by Insurer: The insurer must undertake an internal review of proposed decision to reject the application for compensation or to terminate compensation. The review is to be undertaken by a person in a more senior position than the person who proposes to make the decision — s538. Reviewable decisions are outlined in s540.

Review by Regulator: The Workers’ Compensation Regulator is to hear from both parties and review all relevant information and documentation. Once the Regulator has reviewed the decision, it can confirm or vary the decision, set aside the decision and substitute another decision, or set aside the decision and return the matter to the decision maker with directions the Regulator considers appropriate — s545.

Appeal to Industrial Magistrate (premium matters) or Industrial Relations Commission (claim matters): Formal hearing of both sides, where the appeal body can confirm, vary, set aside and substitute another decision, or set aside the decision and return the matter to the decision maker with directions considered appropriate — s558.

Appeal to Industrial Court: Court rehears evidence and proceedings and additional evidence if ordered by the Court. The Court’s decision is final — s561 and s562.

Medical Panel: Referral to Medical Assessment Tribunal (MAT) by an insurer to decide a worker’s capacity for work or permanent impairment — s500. No appeal against a decision by MAT unless the worker submits fresh medical evidence to the insurer within 12 months of the MAT decision and the insurer refers it to a review panel — s512. Does not affect right to judicial review.

Western Australia

Conciliation: An application for conciliation can only be made after a claim for workers’ compensation has been made on an employer. Before making a conciliation application the applicant must have made reasonable attempts to resolve the dispute by negotiation with the other party.

After an application has been accepted, the Conciliation Service may contact the parties to clarify and discuss the matters. Many disputes are resolved quickly and informally at this stage. If needed, a conciliation meeting is usually scheduled within 21 days from acceptance of the application, at the WorkCover WA offices.

When the conciliation process is concluded, the result is recorded in a Certificate of Outcome, which is provided to the parties in dispute by the Conciliation Service. It outlines:

• the matters in dispute at the outset of the process
• those matters that were resolved and the basis on which they were resolved
• those matters remaining in dispute, and
• details of any payment directions issued.

In the event that a party does not comply with the monetary terms of the agreement, the Certificate of Outcome may be enforced through court proceedings.

Arbitration: Before an arbitration application can be made, the dispute must have been conciliated by the Conciliation Service or a certificate issued by the Director of Conciliation advising the matter is not suitable for conciliation. An Arbitrator makes his or her determination based on evidence. Witnesses may be sworn in and cross examined to give verbal evidence. Parties may be required to attend a directions hearing to clarify matters and address preliminary matters and this will be followed by a recorded arbitration hearing where the Arbitrator considers all available evidence and hears from each party before making a formal determination.

A determination by an Arbitrator is legally binding but questions of law may be appealed to the District Court of Western Australia, providing certain thresholds are met. 

Medical Assessment Panels: Where the dispute is of a medical nature, the Conciliation officer or Arbitrator may refer the matter to a medical assessment panel, made up of medical practitioners. For example, questions may be referred to a panel if there is a conflict of opinion between the worker’s and employer’s medical practitioners, about the nature or extent of an injury or a worker’s capacity for work. The panel may require the worker to attend a medical examination. The determination of the panel is final and binding on all parties and on any court or tribunal.

Legal representation and other assistance: Parties in a dispute may have legal representation, but this is not compulsory. If a worker is not represented, a Conciliation officer or an Arbitrator can refuse permission for an employer or insurer to be represented by a legal practitioner or registered agent.

Registered agents regulated by WorkCover WA can represent parties at proceedings. In certain circumstances the Conciliation officer or Arbitrator may appoint a guardian, allows an interpreter to assist in proceedings or allow a family member or friend to support the injured worker during the dispute resolution process.

Under the Workers’ Compensation and Injury Management Act 1981, maximum costs are set for legal, registered agent and related services. The costs scale is structured to promote the early settlement of disputes by agreement.

Further information:

‘What happens if there is a dispute?’

A guide to the Workers’ Compensation Conciliation Service

Conciliation Rules and Forms

A guide to the Workers’ Compensation Arbitration Service

Arbitration Rules and Forms.

South Australia

Reconsideration: Disputed claim determinations on a claim must be reviewed and reconsidered by a person who did not make the disputed decision. The reconsideration of the disputed decision must be completed within 10 business days after receiving notice of the dispute — s102

The South Australian Employment Tribunal has jurisdiction to deal with a reviewable decision — s98

• A person with a direct interest in a reviewable decision may commence proceedings for a review of the reviewable decision by the Tribunal — s99(1)
• An application may be made to the Tribunal within one month after the applicant receives notice of the reviewable decision unless the Tribunal allows an extension of time — s100(1)
• Initial reconsideration by compensating authority — s102
• If no resolution at reconsideration, the dispute will be dealt with under Part 3 of the South Australian Employment Tribunal Act 2014, s103
• Conciliation Conference s104 Return to Work Act and — s43 South Australian Employment Tribunal Act 2014
• Hearing for determination — s44 South Australian Employment Tribunal Act 2014
• Pre hearing conference — s45 South Australian Employment Tribunal Act 2014
• Settlement conference or mediation ss46 and 47 South Australian Employment Tribunal Act 2014
• Medical question to Independent Medical Adviser — s121 Return to Work Act 2014
• Full Bench appeal only on question of law — s67
• Appeal to the Full Court of Supreme Court (with permission) — s68.

Tasmania

Conciliation: 2 steps:

• Preliminary stage is to identify issues being disputed and to try and resolve the dispute amicably — s42D
• The next stage is a conciliation conference which provides an opportunity for open and ‘without prejudice’ discussions based on all available information to facilitate a resolution — s42E to s42N

Arbitration: Formal hearing normally held in private, where both parties give evidence. Orders made by the Tribunal are final and binding — s44 to s49

Appeal to Supreme Court: Can be made under s136 of the Tasmanian Civil and Administrative Tribunal Act 2020

Medical Panel: The Tribunal may refer a medical question to a medical panel when there is conflicting medical opinion, and one of the parties wishes to continue with proceedings. The determination of the medical panel is binding on the Tribunal — s49.

Northern Territory

Disputes: A dispute arises where a claimant is aggrieved by the decision of an employer:

1. to dispute liability for compensation claimed
2. to cancel or reduce compensation being paid
3. relating to any matter or question incidental to or arising out of the claim for compensation — s103B

Internal dispute resolution process: Approved insurers and self-insurers must have an internal process for resolving a dispute between the injured worker and the approved insurer or self-insurer, or its representatives. The process involves the insurer or self-insurer arranging for an internal review by a senior review officer. This officer will not have made the original decision. From the time of receiving a request for review, insurers or self-insurers should complete the IDRP in a maximum of five working days — s103BA.

Mediation: NT WorkSafe has a legislative role in dispute resolution by providing a mediation service. This service is provided by experienced independent mediators who are not employees of NT WorkSafe. Undertaking mediation is mandatory before any matter can be taken to the Work Health Court. If the dispute is in relation to claim rejection, reduction or cancellation of benefits, a worker has 90 days from receipt of the insurer’s Notice of Decision and Rights of Appeal to apply to NT WorkSafe for mediation. The mediation process must be completed within 28 days of the claimant applying to the Authority to have a dispute referred to mediation. The mediator may make recommendation to parties in relation to resolution of dispute — ss103D-103J.

Legal representation: It is the mediators’ decision of whether parties are entitled to legal representation in the mediation — s103F. The mediator may recommend that the Authority direct the employer to pay the reasonable costs of legal advice received by the claimant prior to mediation and the reasonable costs of legal representation at a mediation conference. The maximum amount of the reasonable costs payable by the employer is not to exceed the amount of average weekly earnings at the time of the recommendation — s103FA.

Work Health Court: Hear and determine claims for compensation and all matters and questions incidental to or arising out of such claims — ss104-114A.

Supreme Court: Points of law only can be referred to the Supreme Court — ss115-116.

Medical Panels: Only for grievances of the level of permanent impairment assessed in the first instance — s72. The degree of permanent impairment reassessed by a panel is not subject to review — s72(4).

Further Information:

Dispute Resolution

Mediation process for workers compensation

Preparation for workers compensation mediation

Application for mediation form

Dispute Resolution - Video

Australian Capital Territory

Conciliation: Parties must make a genuine effort to reach an agreement. Conciliation must occur before arbitration unless there is an issue with the insurer rejecting a claim for compensation.

The conciliation officer may decide claim for compensation is not suitable for conciliation or the issue is unresolved and may make a recommendation. If parties agree, the record of agreement must be in writing — Part 6, Regulations

Arbitration: If conciliation is unsuccessful or compensation claim has been rejected by the insurer, the matter must be decided by the Committee unless the Committee refers the matter to the Magistrates Court — Part 7, Regulations.

Magistrates Court: Appeals or referrals by the Committee — Part 7, Regulations.

Medical Referees: Medical referees may be requested throughout the resolution process to prepare a report to help parties reach an agreement — Part 7, Regulations.

C’wealth Comcare

Following an internal reconsideration process — s62, by an independent review officer (or by a delegate not involved in the initial decision, or by the initial decision delegate in relation to reconsideration of own motion), if either party (employee or employer) to a reconsidered decision is not satisfied with that decision an application to the Administrative Appeals Tribunal (AAT) may be made (a dispute). The AAT processes include compulsory conciliation. The AAT has the discretion to make or decline to make a decision in the terms agreed to by the parties. The AAT must be satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal. If conciliation is unsuccessful, the AAT can also make determinative decisions — s64.

Appeals: A party may apply from the AAT to the Federal Court on questions of law.

C’wealth Seacare

Following a reconsideration process – s78 Seafarers Rehabilitation and Compensation Act 1992 which must involve the assistance of an industry panel or Comcare officer, if the employee is not satisfied with that decision an application to the Administrative Appeals Tribunal (AAT) may be made (a dispute). The AAT processes include compulsory conciliation. The AAT has the discretion to make or decline to make a decision in the terms agreed to by the parties. The AAT must be satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal. If conciliation is unsuccessful, the AAT can also make determinative decisions — s88.

Appeals: A party may apply from the AAT to the Federal Court on questions of law.

C’wealth DVA

For Military Rehabilitation and Compensation Act 2004 (MRCA) primary decisions made before 1 January 2017, a dual appeal pathway existed including an internal reconsideration process — s350, or review by the Veterans’ Review Board — s353. If either party (claimant, Chief of the Defence Force or MRCC) is not satisfied with that decision an application to the AAT may be made. For primary decisions made on or after 1 January 2017, a single appeal pathway exists consisting of a review by the VRB is conducted then if either the veteran or the MRCC is not satisfied with the outcome, an application to the AAT may be made.

For Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) primary decisions

Following an internal reconsideration process — s62, by an independent review officer (or by a delegate not involved in the initial decision), if either party (employee or employer) to a reconsidered decision is not satisfied with that decision an application to the Administrative Appeals Tribunal (AAT) may be made (a dispute). The AAT processes include compulsory conciliation. The AAT has the discretion to make or decline to make a decision in the terms agreed to by the parties. The AAT must be satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal. If conciliation is unsuccessful, the AAT can also make determinative decisions — s64.

Appeals: A party may apply from the AAT to the Federal Court on questions of law.

New Zealand

An employer may apply to the Corporation for a review of its decision that a claimant’s injury is a work-related personal injury suffered during employment with that employer.

A claimant may apply to the Corporation for a review of:

• any of its decisions on the claim
• any delay in processing the claim for entitlement that the claimant believes is an unreasonable delay, or
• any of its decisions under the Code on a complaint.

Levy payers can also ask for a review of any levy paid or payable. Reviews are conducted by an independent reviewer. A review decision can be appealed to the District Court. Appeals on questions of law can be taken to the High Court and the Court of Appeal.