The Law Handbook 2024

948 Section 10: Accidents, insurance and compensation about reviews – including the types of decisions that can be reviewed – should be sent to the WCIRS (see ‘Contacts’ at the end of this chapter). Alternatively, a claimant for compensation can ask that the decision be arbitrated by the WIC rather than having the issue determined by a court. A claimant should not refer a dispute to arbitration without first seeking legal advice, as there are very limited rights to appeal from such an arbitrated decision. Under the WIRC Act, there is a right of appeal from a decision of the court to the Supreme Court on questions of law. Costs Each party before a conciliation officer must pay their own legal costs (s 301). Legal costs are also not recoverable for assisting a person to make, lodge or forward a claim for compensation or application for compensation (s 24). The court has limited power to award costs. Except in proceedings brought by WorkSafe or a self-insurer, costs must be awarded against the party against whom a judgment or decision is made. If it considers appropriate, the court may award costs to the representative of a worker in whose favour a judgment or decision is made (see s 278). There are cost penalties to ensure that most cases will be heard in the Magistrates’ Court. Subject to some minor restrictions in the WIRC Act, including those matters set out above, a solicitor can obtain costs from their own client with respect to any compensation claim. Commonwealth employees Anyone employed by the Commonwealth of Australia, or by certain ‘licensees’ such as the Commonwealth Bank and Telstra, has similar rights to compensation (e.g. weekly payments, medical and other similar expenses, rehabilitation, household and attendant care services, death benefits, common law damages and lump sums for permanent impairment and associated non-economic loss) under the Safety, Rehabilitation and Compensation Act 1988 (Cth). This Act is similar to the Victorian workers compensation legislation but there are a number of procedural differences. In all cases, under the Commonwealth Act, the employee must complete and lodge with the employer a claim form. The claim is then investigated by Comcare or, if the employer is a licensed authority (e.g. Telstra), by the licensed authority. After considering the claim, Comcare or the licensed authority makes a determination either accepting or denying liability for the claim. If the claim is accepted, the quantum of the claim is also determined. A determination may also be made in such cases as to the termination of weekly payments and rejection of a lump sum or death benefit claim. An employee dissatisfied with any determination should request a reconsideration of the determination by Comcare or the licensed authority and if, on reconsideration, the reviewable decision affirms the determination, file an Application for Review with the Commonwealth Administrative Appeals Tribunal. If a worker is dissatisfied with a determination, proper legal or trade union advice should be sought. Other matters Uninsured, bankrupt or missing employers Every employer who is not an authorised self-insurer must take out an insurance policy to cover liabilities for workers compensation; failure to do so is a criminal offence. If an employer does not have such a policy at the time of a worker’s injury, the worker is still protected. The employer must pay workers compensation benefits for the first 10 days of incapacity, and an amount towards the worker’s reasonable medical costs. If the employer’s wage bill is very small (s 72), or if the employer is unable to or does not pay the benefits and medical costs, WorkSafe must assume responsibility andmake these payments to the worker. This ensures that the worker receives payments and does not have to bear the loss (s 93). Discriminatory conduct It is a criminal offence for an employer or prospective employer to engage in discriminatory conduct for a prohibited reason (s 575). ‘Discriminatory conduct’ includes dismissing, altering the position of, treating a worker less favourably, or refusing employment. Discriminatory conduct is for a ‘prohibited reason’ if the dominant reason is that a worker has given notice of injury or made or pursued a claim for compensation. If an employer or prospective employer is convicted or found guilty of an offence against section 575,