Resolving complaints and disputes

Published: 12 August 2019
Last edited: 12 August 2019

A dispute exists when the insurer makes a decision that the worker does not agree with. A dispute may be in relation to:

  • liability
  • work capacity decisions
  • permanent impairment
  • injury management.

If a worker is unhappy with the insurer’s decision regarding any of these matters, they can apply for an internal review of the decision by the insurer, or they can proceed directly to the Workers Compensation Commission (the Commission) to have the dispute resolved. The worker can also proceed to the Commission while waiting for the outcome of an internal review by the insurer. (See 'Dispute resolution in the Commission'.)

For disputes relating to work capacity decisions made before 1 January 2019, see 'Work capacity decisions made before 1 January 2019' below.

Note: Coal miner disputes are determined by the District Court of NSW.

Insurer internal review

The request for review must be in writing (email or post) to the insurer. Workers can prepare a request directly or they may seek the assistance of the Workers Compensation Independent Review Office (WIRO). The request should include:

  • the worker’s contact details
  • the claim number
  • the date of the decision
  • grounds for seeking a review.

The worker can include any additional information they think is relevant to help the insurer review the decision. It is important to include all relevant information to assist the insurer make the right decision.

When the insurer receives a request for an internal review, it must review the decision and respond to the worker within 14 days. The review should be conducted by a person who is appropriately qualified and was not substantially involved in making the original decision.

The insurer will either decide to overturn or modify the original decision or maintain the decision.

Workers Compensation Commission

If the worker does not wish to seek or wait for the outcome of an internal review by the insurer, or is not satisfied with the insurer's decision after a review, they can lodge an application to resolve the dispute at the Commission.

Workers do not need legal representation to make an application with the Commission.

The process for resolving a dispute depends on the nature of the dispute. See 'Dispute resolution in the Commission' for further information.

Stay of work capacity decisions

A review by the Commission may ‘stay’ (temporarily suspend) an insurer’s work capacity decision, providing the application to resolve the dispute is lodged with the Commission before expiry of the period of notice (stated in the insurer decision notice). This means the worker’s weekly payments will continue at the same level until the matter is determined, dismissed or discontinued.

Workers Compensation Independent Review Office

WIRO can help workers to find solutions to workers compensation complaints by contacting the insurer on a worker’s behalf.

Workers can contact WIRO at any stage if they are dissatisfied or require assistance or information. However, workers are encouraged to contact the insurer first to try and resolve any issues.

Where disputes cannot be resolved, WIRO can help workers get advice from a lawyer approved under the Independent Legal Assistance and Review Service (ILARS).

Refer to 'Workers Compensation Independent Review Office' for further information on WIRO and ILARS support.

ILARS does not fund legal assistance for exempt worker claims. As these workers are exempt from the 2012 amendments to the workers compensation Acts they are unable to access ILARS for legal assistance.

Work capacity decisions made before 1 January 2019

Legislative changes in 2018 streamlined the dispute resolution system to align work capacity decisions with other workers compensation disputes.

All work capacity decisions with a notice dated on and after 1 January 2019 can be disputed through the Commission.

Work capacity decision notices dated before 1 January 2019 were subject to a three-stage review process consisting of:

  • internal review - where the insurer undertakes a review of the decision and informs the worker of the review outcome, then
  • merit review - where SIRA undertakes a review of the insurer internal review decision and informs the worker and insurer of its findings and recommendations, then
  • procedural review -  where WIRO undertakes the review and informs the worker, insurer and SIRA of its findings.

Following commencement of the streamlined dispute resolution system, a six-month transitional period was in place for those work capacity decision disputes commenced under the former review process.

From 1 July 2019, all work capacity disputes now use the new dispute pathway through the Commission regardless of decision date. See 'Dispute resolution in the Commission'.

Before 1 January 2019 there were 2 pathways for where the insurer fails to determine a claim or makes a decision that the claimant disagrees with. The chart shows that if it is a work capacity decision: the insurer issues a section 54 notice, then the claimant can request an internal review by the insurer, then proceed to a merit review by SIRA, then a procedural review by WIRO, concluding in a judicial review in the Supreme Court. The chart also shows that for all other workers compensation disputes: the insurer issues a section 74 notice, then disputes proceed to the Workers Compensation Commission (with its internal appeal avenues, to Presidential member or Medical Appeal Panel), concluding in an appeal to the NSW Court of Appeal.  From 1 January 2019, where an insurer fails to determine a claim or makes a decision that the claimant disagrees with, there is a single dispute pathway. The chart shows that in all cases: the insurer issues a section 78 decision notice, with an optional internal review by the insurer (mandatory if requested by claimant), then the claimant can dispute the decision in the Workers Compensation Commission (with its internal appeal avenues, to the President member or Medical Appeal Panel), concluding in an appeal to the NSW Court of Appeal.
A flowchart showing separate dispute resolution pathways for before and after 1 January 2019
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