If you have made a claim for WorkCover and are unhappy with a decision made by your employees insurer, you can dispute their decision through WorkCover conciliation/arbitration.

In these circumstances, it is important you receive independent legal advice from experienced compensation law professionals, such as the team at Burke Mead Lawyers. Our expert professionals can provide you invaluable advice to assist you throughout the conciliation/arbitration process.


What is WorkCover Conciliation/Arbitration?

Conciliation/arbitration is an informal dispute resolution process that seeks to assist in resolving disputes to prevent them progressing to court. This may occur in circumstances where disputes arise between workers and insurers throughout the WorkCover claim process. If you have lodged a WorkCover claim, it is important to be aware of your rights and entitlements throughout the conciliation/arbitration process. 

The practice of conciliation/arbitration/arbitration was developed by the Personal Injury Commission (formerly known as the Workers Compensation Commission or WCC) as part of the objectives of the Workplace Injury Management and Workers Compensation Act 1998.

If you believe an insurer’s decision on a WorkCover claim to be unreasonable or unfair, you are well within your rights to lodge a dispute to fight it. In these circumstances, you must first partake in conciliation/arbitration efforts to resolve the dispute.


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Why is WorkCover Conciliation/Arbitration Important?

WorkCover conciliation/arbitration is important in protecting the rights and entitlements of workers who have been injured or suffered an illness as a result of their work. If you are a worker who has submitted a claim, it is important you understand the conciliation/arbitration process and your ability to dispute a decision made by an insurer in response to a WorkCover claim.

Conciliation/arbitration is a voluntary process that aims to assist an employee and insurer to resolve a WorkCover dispute without the need for a formal conference or court. This provides an opportunity for the parties to explore resolution of the dispute face to face and, if all issues are settled, determine how the matter is to be finalised. conciliation/arbitration conferences act as a part of a statutory scheme for dealing with workers compensation disputes in a way that is just, timely, fair, and affordable.

The WorkCover Conciliation/Arbitration Process

Once you have lodged a WorkCover claim, your employer’s WorkCover insurer can choose to either reject, accept in full or accept in part. If you believe this decision to be unfair you can lodge a dispute to fight it, and must undergo the conciliation/arbitration/Arbitration process. All disputes lodged within the Personal Injury Commission must first go through the conciliation/arbitration process.

Step 1: Applying for Conciliation/Arbitration

If you are an injured worker or have suffered an illness as a result of your employment, you can claim WorkCover to compensate for costs such as medical expenses. If you are unhappy with the decision made by your employer’s insurer as a response to your claim, you may wish to dispute this through a conciliation/arbitration hearing.

To apply for conciliation/arbitration, you must fill out and lodge an Application to Resolve a Dispute in  the Personal Injury  Commission. After this conciliation/arbitration form is received, there is usually a lodgment of a reply by the respondent and in some cases a response by yourself (the applicant). Where disputes arise regarding the degree of permanent impairment suffered by the employee, or whether any proposed treatment or service is reasonably necessary, the Member will refer these cases to an approved medical specialist. 

After this, the Member will determine if the dispute can be resolved without a face-to-face conciliation/arbitration conference, in which case a telephone conference takes place and the parties explore settlement to possibly reach agreement. If the Member believes a face-to-face meeting is necessary, the matter will be scheduled for a conciliation/arbitration conference.

Step 2: Preparing for Conciliation/Arbitration

Conciliation/arbitration hearings are organised by the NSW Personal Injury Commission and generally occur in person. Whilst meetings are informal, it is integral that you are aware of the details of your claim and gather any necessary documents to substantiate the basis of your dispute in conciliation/arbitration or if the matter is to progress to an arbitration meeting. If you choose to work with a personal injury lawyer, your legal representative can assist you with this process.

Additionally, you are entitled to bring a support worker, legal representative or a union representative (if you are a union member). Even if you choose to bring a representative that isn’t a lawyer, it is still advised to seek legal advice before accepting an offer, as some outcomes, such as the insurer offering weekly payments for a compromised period, may limit your ability to seek further compensation in the

Step 3: Attending the Conciliation/Arbitration Conference

When you attend the conciliation/arbitration conference it is important to have prepared the details of your claim, and why you believe the decision to be unreasonable or unfair. The Personal Injury  Commission is charged with facilitating conciliation/arbitration meetings and will appoint a Member who will attempt to resolve the dispute, through conciliation/arbitration, to avoid the matter proceeding to court. The Member will not engage in private discussions with any party or their legal representatives.

The Member will use some or all the following ways to assist discussions:

  • identify the issues/differences between the parties in relation to each;
  • review any agreements reached between the parties;
  • encourage parties to review the strengths and weaknesses of their positions based on the evidence;
  • identify the potential outcomes for each party based on the evidence;
  • identify barriers to agreement and explore how these might be overcome;
  • identify practical solutions;
  • facilitate realistic settlement offers;
  • identify the advantages of settlement and the risks of the matter going to court for determination;
  • allow parties to undertake private conferencing between themselves and their legal representatives if that is deemed to be appropriate and productive; and
  • assist parties to draft terms of settlement in accordance with any agreement reached.

Step 4: Reaching a Resolution

During the initial conciliation process, the insurer may offer you possible compromises in response to your dispute which you may choose to accept if you deem them to be reasonable. This is a decision that must be accepted between both parties for a resolution to occur. Parties are under no obligation to reach a settlement. The Members have very few powers to make the parties arrive at resolution at this stage, and, if you are unhappy with the outcome of the conciliation conference you can continue to dispute the insurers’ decision through the arbitration process. If you choose to do so, it is important you seek legal advice from experienced and knowledgeable professionals such as the team at Burke Mead Lawyers to assist you moving forward.

Step 5: No Resolution: Determination by Arbitration

If the conciliation conference is unsuccessful in settling the dispute, the Member/Arbitrator will proceed on the same day to determination by arbitration. During arbitration, all parties, the Registry, and the Member/Arbitrator will take the required action to finalise the proceedings. It is common for most disputes to be settled this way and results in a Certificate of Determination.

Key Takeaways

Need Help with Your Workers Compensation Case? Call Burke Mead Lawyers Today!

If you have entered a claim for Workers Compensation, and are wishing to dispute a decision made by your employer’s insurer it is important to seek legal advice from an experienced professional such as the team at Burke Mead Lawyers.

Our solicitors are experienced in assisting people wishing to resolve workers compensation disputes, and provide invaluable guidance to assist in achieving the most favourable outcome. Contact Burke Mead Lawyers to find out more!

About the Author
Sean Wright

Sean is a member of the personal injury team with extensive experience in representing injured clients at the Personal Injury Commission as well as in the District and Supreme Courts of NSW.