Can the WorkCover Ombudsman investigate complaints about Rehabilitation and Return to Work Plans?

Published: 11 March 2009

Under section 99D(1) of the Workers Rehabilitation and Compensation Act 1986 (“the Act”), the WorkCover Ombudsman has the function of receiving and investigating complaints about administrative acts under the Act, and “investigate other matters relating to providing for the effective rehabilitation of disabled workers and their return to work on a successful basis”.

Subsection 99D(2) provides that the WorkCover Ombudsman may act under subsection (1) on his or her own initiative, at the request of the Minister, or on the receipt of a complaint by an interested person.

This power to act under subsection (1) is restricted by Section 99D(3).  In particular, subparagraph (3)(a) stipulates as follows:

(3) However, the WorkCover Ombudsman –

1. may not investigate an act where the relevant matter –
1. is, or is capable of being, the subject of proceedings under Part 5, 6, 6A, 6B or 6C; or
2. is the subject of any legal proceedings;

There can be little doubt that the “However” of subsection (3) qualifies the extent of investigative power under subsections (1) and (2), in which case subsection 99D(3)(a) means that a matter that may otherwise fall within the WorkCover Ombudsman’s jurisdiction to investigate may not be investigated if it is capable of becoming the subject of proceedings under certain Parts of the Act or it actually is the subject of legal proceedings.   

What does this mean in the case of complaints about Rehabilitation and Return to Work Plans?  These Plans are established pursuant to section 28A of the Act.  A worker is entitled to have the Workers Compensation Tribunal review the compensating authority’s decision to establish or not to establish a Plan or a provision of a Plan under section 28B of the Act.  Sections 28A and 28B are located in Part 3 of the Act and not under any of the Parts of the Act referred to in subsection 99D(3)(a)(i).  It seems clear, then, that the WorkCover Ombudsman may investigate complaints about these Plans even though they could become the subject of a dispute under section 28B.  Provided that a Plan is not actually the subject of proceedings in the Tribunal, the WorkCover Ombudsman could conduct an investigation of a complaint about a Plan.

It would have to be beyond argument that a dispute in the Tribunal qualifies as “legal proceedings” for the purpose of subsection 99D(3)(a)(ii) of the Act.  Consequently, if an investigation relating to a Plan has begun, the WorkCover Ombudsman would be bound by subsection 99D(3)(a)(ii) to cease the investigation as soon as the worker applies to the Tribunal for a review of the Plan under section 28B of the Act.

Anyone dissatisfied with a Plan, has to choose whether to dispute it in the Tribunal or lodge a complaint about it with the WorkCover Ombudsman: having both a dispute in the Tribunal and a complaint investigated by the WorkCover Ombudsman is not permitted.

In some situations there will be advantages in having a Plan reviewed by the Tribunal and in others an investigation by the WorkCover Ombudsman will achieve more.

If you are unsure about whether to dispute a Plan in the Tribunal or request an investigation by the WorkCover Ombudsman, feel free to contact the Office to discuss your particular situation.