By Ryan Kennedy
Employers often seek our advice about reviews to the Workers’ Compensation Regulator.
Often WorkCover will agree with the employer that an injury is not work-related, however the claimant will seek review. When this happens, the Regulator must decide whether to confirm WorkCover’s decision to reject the claim as being non-work related, or overturn it thereby accepting the claim.
When a decision is overturned on review, it is normally difficult and costly to successfully appeal the Review decision to the Queensland Industrial Relations Commission. Ensuring the Regulator correctly determines the matter is therefore of upmost important. A wrong decision may result in increased workers’ compensation premiums and WorkCover may potentially have to defend a common law claim.
So what should an employer do when they are notified of an application for review?
The first thing is to check that the information the claimant provides to the Regulator is correct. The claimant will be granted an opportunity to provide additional evidence to the Regulator, and to make submissions. You, as employer, will be entitled to that information if it has not previously been considered by WorkCover.
Often the claimant will present facts that are inconsistent with your understanding of the claim and the key events as they occurred. This happens in respect of all kinds of injuries, from physical to psychiatric. Unfortunately claimants are not always accurate when describing work processes or their version of key events. Alternatively, their treatment providers and lawyers might misconstrue their instructions, and, as such, what actually occurred.
Recently we were successful in having the Regulator confirm WorkCover’s decision to reject a claim for a physical injury on behalf of an employer client. That happened notwithstanding that the claimant provided evidence from an orthopaedic surgeon that the work activities caused injury.
In that claim, the worker’s description of her work duties were inaccurate, and the orthopaedic surgeon therefore lacked an adequate understanding of what actually occurred. As a consequence, he could not confidently comment on the cause of the injury, or whether work significantly contributed to it.
Being provided an inaccurate history obviously undermines the specialist’s evidence. In that case, the evidence of an occupational physician was preferred over an orthopaedic surgeon.
Similar matters arise in claims for psychiatric injury. Often there will be conflicting views about what occurred, and who was at fault in certain circumstances. The claimant’s perception of events typically plays a key role in their recollection of what occurred in psychiatric claims, and does not necessarily withstand scrutiny when other witnesses’ versions of events are considered.
Getting across the employer’s viewpoint is therefore significantly important, and may save the business from an unmeritorious claim being accepted; a premium increase; damage to reputation; and WorkCover having to defend a common law claim.
We therefore recommend being mindful your rights to submit further evidence to the regulator when this situation arises.