Guidelines for Reviews
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Criteria for Application
A worker may only apply to the WorkCover Ombudsman for a review of a decision under Section 36 if the following preconditions are met:
- The decision is a discontinuance of weekly payments under Subsection 36(1); not a reduction of weekly payments under Subsection 36(2);
- The worker has received a notice of discontinuance;
- The worker has lodged a notice of dispute with the Tribunal.
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Reason for Suspension
The only ground on which the WorkCover Ombudsman may suspend a decision to discontinue weekly payments is that it appears to not be reasonably open to the decision maker to decide to discontinue the payments having regard to the circumstances of the case.
I take the view that “reasonably open” requires that there be a proper basis for the decision or that the decision be arguable on the law and facts. It does not require that the decision be more likely than not to be upheld by the Tribunal at hearing.
Therefore, if there is cogent evidence in support of the decision, I will find that the decision is reasonably open, even if there is conflicting evidence. On the other hand, if there is no evidence to support the ground on which the discontinuance is based, the decision is not reasonably open even if there is evidence that could support another (unstated) ground for discontinuance.
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Making an Application
I have requested that all decision makers advise workers in the notice of discontinuance that they may apply to me for a review of the decision if they lodge a notice of dispute with the Tribunal. To apply, the worker need do no more than send to my Office a copy of the decision and the filed notice of dispute with a covering letter stating that he/she applies for a review.
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Review Process
Upon receiving an application, my Office will send notification to the decision maker and request a copy of the documents relied upon for the decision. The decision maker will also be given the option to provide brief written submissions with the documents. The documents will have to be delivered to my Office within 7 days of the request.
If the discontinuance is revoked on reconsideration, the decision maker needs to advise me of that immediately and I will advise the worker that the review is no longer required.
Under Section 36(17), I have an absolute discretion as to whether or not the worker or the decision maker will be heard on the review. In most cases, I will rely on the documents obtained from the decision maker to make my decision on the application. If, on reading the documents, I require further information from either the worker or the decision maker or both, I will contact them. I will set tight deadlines for responses.
When I make a decision, I will advise both the worker and the decision maker in writing. While not obliged to, I will provide brief reasons for my decision.
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Finality of WorkCover Ombudsman’s Decision
Section 36(17)(c) of the Act makes it clear that a decision on a review under Section 36(15) is final: it cannot be appealed or reviewed under the Act or any other law.
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Effect of Suspension
The Act does not expressly state what the result of a suspension is, but I take the view that it means that weekly payments are reinstated as if the discontinuance had not taken effect. In other words, weekly payments are paid from the date they were ceased (if that has occurred). If the suspension occurs prior to the cessation of payments, they continue without interruption.
Under Section 36(16) of the Act, weekly payments that are reinstated continue until -
- the notice of dispute is withdrawn;
- the matter is resolved on reconsideration or at conciliation or otherwise settled between the parties;
- the Tribunal orders otherwise.
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Interest on Arrears
Section 47 of the Act requires interest at a prescribed rate to be paid on weekly payments that have not been paid “as and when required to be paid under the Act” unless the delay is attributable to some fault on the part of the worker.
I take the view that Section 47 applies to a reinstatement of weekly payments under Section 36(15) so that interest will be payable if there is a delay in reinstating payments after notification by me that the discontinuance is suspended. Even so, I note that interest would only have to be calculated from the date of the suspension: not the date of cessation of payments because the weekly payments were not required to be paid under the Act until the suspension of the decision.
I observe that under Subsections 36(3a) and (3b), most decisions to discontinue weekly payments will require 28 days advance notice. I expect that most workers who receive a notice will lodge their dispute and apply to me for a review well before the 28 days have expired. In many cases, I will have made a decision on the application before the discontinuance is to take effect.
Wayne Lines
WorkCover Ombudsman
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