Deciding whether you intend to pursue a claim for statutory benefits or common law lump sum benefits is the first step in the claims process. This determines which forms you need to complete and what other steps you need to take in order to achieve the maximum compensation in the shortest possible timeframe.
Claiming Statutory Compensation
In the case of statutory insurance, there is a relatively simple form which is available from WorkCover’s website that needs to be filled out as soon as possible after the injury is sustained or comes to your attention. Remember, in some cases injuries can be caused over a period of time, such as repetitive strain injuries that will not necessarily be attributable to a specific incident. Once the form is filled out and submitted to WorkCover, WorkCover will generally accept the claim and commence paying statutory benefits immediately. In the event that WorkCover rejects the form or ceases the payment of statutory benefits, you will need to seek urgent legal advice to understand what rights of review you have in respect of WorkCover’s decision to reject or cease paying compensation.
Claiming A Lump Sum Compensation
The process of claiming lump sum compensation commences upon completion of a Notice of Claim via the approved form. The Notice must be submitted to WorkCover within three years of the date of injury being suffered or, in limited circumstances, another period of time.
Once the Notice of Claim is submitted, WorkCover will typically appoint one of their panel lawyers to investigate the circumstances described in the Notice of Claim.
Within six months of receipt of the Notice of Claim, WorkCover will provide a formal response to the worker’s Lawyer. This response will advise whether WorkCover accepts liability for the claim, denies liability for the claim, or accepts liability in part.
Once WorkCover’s response has been received, the injured person will undertake one or more independent medical examinations by a qualified medical practitioner to report on the nature of their injuries. In conjunction with obtaining independent medical evidence, our compensation lawyers help you to collate all information relevant to our client’s claim such as:
- Medical records
- Financial documentation
- Out of pocket expenses; and
- Statements and advice from colleagues, witnesses and firm members.
Generally, statements and advice cover the circumstances of the accident, the nature and extent of the injuries that our client has suffered. They can also include the impacts that the injuries have had on our client’s day to day life.
Once all the independent medical evidence and all relevant information and documentation has been obtained and disclosed to WorkCover, a compulsory conference will generally be convened. This can either be done directly or via a Barrister. The purpose of the compulsory conference is to present your case to WorkCover’s Lawyers with a view of seeking to negotiate a suitable settlement.
If negotiations are successful (our success rate is over 85%), an appropriate amount of compensation will be agreed, and you will enter into a Deed of Settlement with WorkCover. Compensation is then generally paid within 30 days.
On the rare occasion that a claim is not settled at the compulsory conference, the next step is to commence legal proceedings in the appropriate Court and engage in mediation.
Mediation is similar to a compulsory conference in that it is a formal meeting between WorkCover’s Lawyers and your team. They generally include a Barrister retained on your behalf. During mediation you will seek to further negotiate an appropriate payment to compensate you for injuries that you have suffered.
The major difference between a compulsory conference and mediation is that mediation is supervised by an independent senior Barrister (often a Queens Counsel). The Barrister is engaged by both WorkCover and you to act independently. Their goal is to seek to broker a negotiated settlement of your claim.
As of 30 June 2017, all our client’s claims have settled at or before a mediation and it has never been necessary for us to take a worker’s compensation claim to trial. That said, if a claim does not settle at either a compulsory conference or mediation, the matter will progress to trial before a Judge. The judge will ultimately determine whether WorkCover is liable to compensate you and, if so, how much compensation you are entitled to.