In this blog, I will be discussing the pre-court procedures with WorkCover claims when an injured worker has decided to pursue a common law claim for damages. I will explain what the pre-court procedures are, what to expect and what can be achieved.
What are the pre-court procedures?
Many years ago, the Queensland State Government introduced new legislation which meant that injured workers were no longer able to commence court proceedings without undertaking a process called the pre-court procedures. The function and purpose of the pre-court procedures was to promote the resolution or settlement of cases before any court proceedings were commenced.
The pre-court procedures in the Workers Compensation & Rehabilitation Act 2003, involve a series of steps or procedures to be carried out or completed before an injured person is entitled to file and serve a Claim and Statement of Claim in the court system.
Notice of Assessment
Before an injured worker can initiate or commence the pre-court procedures, the injured worker generally needs to have a statutory claim with WorkCover Queensland accepted and a Notice of Assessment issued by WorkCover. Generally speaking, without the Notice of Assessment, an injured worker is not entitled to commence their common law claim via the pre-court procedures.
Once the injured worker has received the Notice of Assessment from WorkCover and if the work-related impairment is less than a 20% whole person impairment, the injured worker must make what is known as an irrevocable election. This simply means that the injured worker must make a decision as to whether they wish to accept the offer of lump sum compensation contained in the Notice of Assessment or pursue the common law claim but they cannot do both. If the work-related impairment is equal to or more than 20% then the injured worker will have achieved a certificate injury and they can accept the lump sum offer and commence their common law claim for damages.
Notice of Claim for Damages
To start the pre-court procedures, a Notice of Claim for Damages needs to be prepared. This is an important and comprehensive document which addresses all aspects of the claim including details of how the accident occurred, details of the injured worker’s income and work history, details of any past or prior injuries, illnesses and conditions, details of the allegations of negligence against the employer and any other third party who might be involved and comprehensive details regarding the quantum (or full value of the claim). The document must also contain an offer to settle.
Response to the Notice of Claim for Damages – Compliance
The Notice of Claim for Damages must be delivered to the employer and WorkCover Queensland.
WorkCover will then appoint one of their panel lawyers or law firms to respond to the claim and to provide a response by indicating whether the contents of the Notice of Claim for Damages complies with the legislation or if there are any issues of non-compliance. Any issues of non-compliance or purported non-compliance are usually able to be dealt with promptly and easily.
Disclosure
During the pre-court procedures, the injured worker and the employer/WorkCover are required to disclose information and documents in their possession which are relevant to the claim. This includes information and documents regarding the circumstances of the event or accident resulting in the injury, the injured worker’s injury/ies and the prospects of rehabilitation, the injured worker’s medical history, current employment and wages and documents such as witness statements, incident reports, CCTV footage and the like.
The legislation requires the injured worker and the employer/WorkCover to reasonably cooperate with each other regarding requests for information or documents relevant to the claim.
Independent Medical Examinations
Once the common law claim has commenced, it is routine for the lawyers acting for WorkCover to request an independent medical examination.
During the statutory claim and prior to issuing the Notice of Assessment, it is always the case that WorkCover will have obtained an independent medical examination or even multiple or several independent medical examinations prior to when the Notice of Assessment has been issued.
The case law and legislation make it clear that any request by WorkCover during the pre-court procedures has to be reasonable and not unnecessarily repetitious. In other words, doctors shopping is not encouraged or allowed.
Injured workers are entitled to object to a request for an independent medical examination if the request is unreasonable or unnecessarily repetitious.
For example, if an injured worker has attended upon an orthopaedic surgeon for an independent medical examination prior to when the Notice of Assessment has been issued and WorkCover wishes to obtain an updated report from that orthopaedic surgeon prior to engaging in settlement negotiations as it has been six months since the original assessment to obtain an updated report, this would be a reasonable request. However, if an entirely fresh panel of orthopaedic surgeons was provided to allow WorkCover to obtain a new report from a new expert witness then an injured worker might be justified and entitled to object on the basis that the request is unreasonable and unnecessarily repetitious.
Written Notice – Liability – Negligence
Within six months of the Notice of Claim for Damages being delivered to WorkCover and achieving compliance, WorkCover must issue a written notice advising the injured worker and their lawyer whether liability is admitted or denied.
If liability or negligence is denied, particulars must be provided to explain the denial of liability.
If liability is admitted, WorkCover must explain whether contributory negligence is alleged or not and the percentage that liability is admitted.
Compulsory Conference
Within three months of receiving WorkCover’s written notice regarding liability, a compulsory conference must be organized.
The compulsory conference is a good opportunity to attempt to resolve the claim and many claims do resolve or settle at the compulsory conference.
Usually, the compulsory conference is held at the office of the lawyer or law firm acting for the injured worker or the law firm who is acting for WorkCover. The compulsory conference is organized by agreement.
The discussion which are held at the compulsory conference are conducted on a without prejudice or confidential basis.
Compulsory conferences can be held with the assistance of a mediator if both parties and if all parties agree that the matter would benefit from having the assistance of a mediator.
Prior to the compulsory conference being convened, the solicitor acting for the injured worker is required to provide a written financial statement to the injured worker explaining a number of matters including:-
the legal costs up to and including the compulsory conference;
an estimate of the likely legal costs and net damages if the claim proceeds to trial and is decided by the court;
an estimate of the likely legal costs and net damages if the claim is settled without proceeding to trial;
the consequences, in terms of legal costs, if the claim proceeds to trial and is decided by the court if the amount of damages awarded by the court is equal to or more than the claimant’s written final offer;
the consequences, in terms of legal costs, if the claim proceeds to trial and is decided by the court if the amount of damages awarded by the court is less than the injured worker’s written final offer but equal to or more than the insurer’s written final offer; and
the consequences, in terms of legal costs, if the claim proceeds to trial and is decided by the court and the claim is dismissed, the court makes no award of damages, or the amount of damages awarded by the court is equal to or less than the insurer’s written final offer.
Once the written final statement has been provided to the injured worker by their solicitor, the solicitor for the injured worker can then provide WorkCover with a certificate of readiness which must be provided 7 days prior to the compulsory conference.
What happens when a settlement is reached at the Compulsory Conference?
If a settlement is reached at the Compulsory Conference, a legal document called a Release will be drafted by the lawyer acting for WorkCover.
Once this document has been checked and approved by both parties it is then signed by the injured worker and WorkCover.
WorkCover will then seeking statutory clearances from Centrelink, Medicare and the NDIS and once confirmation of any and all statutory refunds are identified then WorkCover will draw down the settlement monies and pay them into the trust account of the law firm acting for the injured worker.
The post-settlement process generally takes about 8 weeks, but the settlement monies can be available earlier or it can take longer than 8 weeks but usually not longer than 12 weeks.
The solicitor for the injured worker will then wait for the settlement monies to be paid into their trust account and will then check all the figures and account to their client regarding the client’s ‘in hand’ figure after the deduction of all statutory and other refunds and legal costs.
What happens when a settlement is not reached at the Compulsory Conference?
If the Compulsory Conference does not result in a settlement of the claim, written final offers must be exchanged and must remain open for 14 days.
Court proceedings cannot be commenced while the written final offers are open during the 14-day period.
Court proceedings must be commenced within 60 days of the compulsory conference but only after the written final offers have expired.
Even if court proceedings are necessary, a significant or high percentage of cases or claim are able to be resolved prior to trial.
