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Published: 23 November 2017
Author: Ross Inglis

How does a WorkCover Common Law claim work?

How we win when others don’t

Our firm's policy is to put our best foot forward with as much information as we can muster and then to stare our opponent in the eye and say: “This is what went on and this is what we want.”

It is well understood that serious injuries that are caused by an employer’s negligence in maintaining health and safety standards typically attract large compensation payouts.

But exactly how does the process work, and does an injured worker have to attend court?

These are commonly asked questions, and they require a little explaining.

The important thing to understand is that the quality among law firms in the WorkCover Common Law field is extremely patchy. So, while explaining the process of making a serious injury claim, I will also describe our firm’s approach which is extremely thorough, tries to spare the worker a costly and lengthy court process, and which, importantly, has one of the highest success rates in the profession.

How does the Common Law process work?

The Common Law process first requires that the injury is stabilised because we need to work out what we're dealing with going forward.

We need to establish what level of employability the person has, if any, and the medical evidence needs to confirm that the person has a serious injury.

A 30 per cent permanent impairment under the American Medical Association Guide gives you an automatic entitlement to serious injury. But most people don't get to 30 per cent. If you have a serious permanent impairment, which many people have, then you'll meet the criteria for serious injury.

The process is that, where the medical evidence obtained confirms that the worker has a serious injury, we then prepare an affidavit for the worker to swear as to the circumstances of the accident and how it's affected them. We then submit various documents with the affidavit including medical reports, income tax returns etc. There's a bit involved but we do all that for our clients. The documents are submitted to the Victorian WorkCover Authority, and they then pass it on to one of their lawyers who has 120 days to respond.

If WorkCover grants the injured worker a serious injury certificate for pain and suffering or for economic loss, there’s compulsory conferencing before you issue proceedings in court.

Why we win so many cases

I would say that about 60% of our cases will settle without going to court.

One of the reasons for that is that the process that I've just described needs to be taken seriously, and I think that's one of the things that we do very well, and I say that because I'm told by solicitors who are opposed to us that our applications are some of the best they've seen.

That doesn't mean to say that we are automatically going to win. By “best” I mean that all the material is being put to them properly and extensively.

The advantage of that is that the lawyer on the other side - who then has to get instructions from the claims agent and the WorkCover Authority - is in a position to say:

“Look, the plaintiff lawyers have presented us this material which is pretty convincing. So I suggest that we talk to them and try and resolve this matter because proceeding to court is only going to cost more money and they're clearly going to succeed.”

If you don't do that at that early stage and basically what you put up is a half-baked affidavit with very little material, it's very easy for the lawyer on the other side acting for WorkCover to say that this is just rubbish. I can’t see any credibility in this claim, so the answer is a “no”. Then the client is forced to go down the litigation track.

That’s not to say that we avoid litigation, but litigation can be very stressful for people and the firm's policy is to put our best foot forward with as much information as we can muster and then to stare our opponent in the eye and say: “This is what went on and this is what we want.” We use good senior barristers to present our case as if we were presenting it in court and therefore try and get a good result for the client early on without having to go to court.

So our aim it to can get a result for the client that represents the figure within the range of what they can get out of the court, but at an earlier stage, and without waiting a year or two for the case to come on in court. This means we’re not cluttering up the court list, and we are not running up the legal costs for our client. Our approach is faster and cheaper for our clients, they don’t have the stress of court, and we do this while securing for them a maximum payout in compensation.

Can I appeal a decision if WorkCover rejects my claim?

If you lodge a WorkCover claim that is rejected or you are on WorkCover and your claims agent sends you a letter saying they are going to stop your medical treatment or stop the weekly payments, it’s important to contact your union or to obtain legal advice. 

The appeals process is pretty simple. You appeal to the Accident Compensation Conciliation Service, where you have to lodge an appeal within 60 days.

We handle those matters and we handle submissions on behalf of our clients, and we obtain medical material if appropriate in order to support their claim. We fund most conciliations, and certainly do for affiliated union members who are entitled to this as a free conciliation. Normally the medical report fees are reimbursed to us by the claims agent, in accordance with WorkCover protocols.

For our union members the cost is zero unless there is an unusual disbursement such as an expensive medical report for which we can't cover the whole fee. Even in this case, the amount seldom amounts to more than a couple of hundred dollars so we’re not talking about a lot of money.

Essentially the appeals process is pretty straightforward.

We arrange for WorkCover Assist or Union Assist go with the worker on the day of the conciliation. We will lodge a written submission on behalf of our client. The conciliation process itself is pretty user-friendly so no one there is trying to give the worker a hard time. Someone will turn up from the claims agent and sometimes someone representing the employer is allowed to attend as well, and the process is to try and resolve the matter without the need to go to court. It is also a prerequisite before you are allowed to go to court.

So you go to conciliation where the matter might be resolved, or if it's a medical issue there might be an agreement to have the matter referred to the medical panel. All medical reports are sent to the medical panel along with the worker who attends by themselves.

Again it’s user-friendly. You are obviously expected to tell the truth, to explain your symptoms. One of the doctors will examine the worker and then provide an opinion which will then be accepted by all parties.

It is not terribly stressful. So that’s what you should do if your claim is rejected or you're  medical treatment costs or income benefits are terminated.