Registrar's practice guide for work injury damages in the Workers Compensation Commission

The Workplace Injury Management and Workers Compensation Act 1998 (“the Act”) establishes a process for progressing claims for Work Injury Damages. A Work Injury Damages claim is dealt with outside of the statutory scheme.

The role of the Workers Compensation Commission ("the Commission") in work injury damages claims is limited to providing an administrative and mediation framework, together with a process for determining if the degree of whole permanent impairment is sufficient to meet the threshold to recover damages.

Ultimately, should the claim fail to settle, it will be determined by a court of competent jurisdiction, rather than the Commission. This will include the liability issues including such issues as whether the claim is duly made.

A worker seeking damages (“the claimant”) must make a claim on the employer and insurer ("the defendant") as required by the Act. The claimant must establish that he or she has a whole person impairment of at least 15% and that the work injury is a result of the negligence of the employer.

If the defendant denies liability, or fails to determine the claim, the claimant can then serve a pre-filing statement on the defendant setting out the particulars of the claim and evidence on which the claimant will rely. The defendant is required to respond by serving a pre-filing defence on the claimant that sets out the particulars of the defence and evidence on which the defendant will rely.

The legislation provides for mediation of the claim by the Commission before it can be heard and determined by a court. The parties must attend mediation, unless the defendant wholly denies liability for the claim. The Respondent insurer or employer is expected to attend the mediation personally and have authority to negotiate and settle.

The Act also provides a mechanism for dealing with defective pre-filing statements, and orders for access to information and premises.

The following guide outlines the progression of a work injury damages claim, namely:

• Making the Claim and Threshold Requirements
• Service of the Pre-Filing Statement and the Pre-Filing Defence
• Defective Pre-Filing Statements
• Application to Strike Out a Pre-filing Statement
• Orders for Access to Information and/or Premises
• Mediation
• Post Workers Compensation Commission

MAKING THE CLAIM AND THRESHOLD REQUIREMENTS

A claim for work injury damages cannot be made unless a claim for lump sum compensation in respect of that injury has been made before or at the same time (s 280A of the Act).

Section 260 of the Act provides for the making of a claim for work injury damages in accordance with the requirements of any Workers Compensation Guidelines. The Guidelines for claiming workers compensation, issued by the State Insurance Regulatory Authority, at Part B9, sets out the process for making and determining the claim.

The Act (s 282) requires that the claim include the evidence to be relied upon and relevant particulars, as follows:

• details of the injury to the worker caused by the negligence or other tort of the employer
• the degree of assessed whole person impairment
• evidence of the negligent act/s of the employer
• economic loss that is being claimed as damages.

Section 281 of the Act sets out the obligations of the insurer when a claim is made. The insurer is to determine the claim within 1 month of the level of whole person impairment being fully ascertainable or within 2 months after all relevant particulars have been supplied, whichever is the later. The insurer can accept liability and make a reasonable offer of settlement, or dispute liability.

If there is a dispute as to whether the degree of permanent impairment is sufficient for an award of damages (“a threshold dispute”), the claimant cannot serve a pre-filing statement unless the degree of permanent impairment has been assessed by an Approved Medical Specialist (“AMS”), pursuant to ss 313 and 314 of the Act.

An Application for Assessment by an Approved Medical Specialist (Form 7) should be completed. The Registrar will refer the medical dispute pursuant to s 321 of the Act to an AMS to assess the degree of permanent impairment.

The application must include evidence that a claim has been made on the defendant or insurer in accordance with the Workers Compensation Guidelines and that a threshold dispute exists, and all documents that the claimant wishes the AMS to consider (r 17.2 of the Workers Compensation Commission Rules 2011). A sealed copy of the application must be served on the defendant within 7 days of registration by the Commission (r 17.2(3)).

The defendant may file a Response to the Application for Assessment by an Approved Medical Specialist (Form 7A) including all documents the defendant wishes the AMS to consider (Rule 17.2(5)) within 21 days of registration of the application.

A Medical Assessment Certificate will be issued to the parties (s 325 of the Act) and is conclusively presumed to be correct (s 326) as to:

• the degree of permanent impairment of the worker as a result of an injury
• whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality
• whether impairment is permanent
• whether the degree of permanent impairment is fully ascertainable

SERVICE OF THE PRE-FILING STATEMENT AND THE PRE-FILING DEFENCE

Pre-Filing Statement

Section 315(2) of the Act provides that a pre-filing statement can only be served if;

• the claim is wholly disputed, or
• the insurer has made an offer of settlement pursuant to s 281 and 1 month has elapsed since the offer was made, or
• the person on whom the claim is made has failed to determine the claim as and when required by s 281.

A claimant must serve a pre-filing statement on the defendant before he or she can commence court proceedings. A pre-filing statement must be in the form of the statement of claim to be subsequently filed in the court (r 17.3).

A claimant must serve with the pre-filing statement all information and documents on which the claimant proposes to rely, including notification that the degree of whole person impairment has been accepted as being sufficient for an award of damages (r 17.4).

Pre-Filing Defence

The defendant is required to respond to the pre-filing statement within 28 days of being served, by either accepting or denying liability wholly or in part.

Section 316 of the Act and r 17.5 of the Rules require the defendant to serve a defence to the claim setting out particulars of the defence and evidence on which the defendant will rely. Rule 17.5 provides that the pre-filing defence must be in the form of a notice of grounds of defence, which will subsequently be filed in the relevant court, and is to include information and documents upon which the defendant proposes to rely.

At the expiration of 28 days from the date of service of the pre-filing statement, the claimant can refer the matter for mediation whether or not a defence has been filed. The defendant may still file a defence after 28 days of receipt of the pre-filing statement. However, if the defendant fails to file a defence within 42 days of the date of service of the pre-filing statement, the claimant is permitted to commence court proceedings. If the defendant does not wholly or partially deny liability, it may file a defence after 42 days, disputing the amount of damages or alleging contributory negligence.

DEFECTIVE PRE-FILING STATEMENTS

The Act and Rules set out a process to deal with alleged defects in a pre-filing statement. In the first instance, the defendant must, within 7 days of service of the pre-filing statement on the defendant, notify the claimant of the alleged defects (s 317 of the Act). If the parties are not able to resolve the dispute between them, the matter can then be referred to the Registrar for determination.

Where the defendant has served notification that asserts that a pre-filing statement is defective, the claimant may dispute that the pre-filing statement is defective and complete an Application to Cure a Defective Pre-filing Statement (Form 11B). Pursuant to r 17.7(2), the claimant must lodge with the application the following:

• A copy of the pre-filing statement;
• A copy of the defendant’s notification, and
• Submissions detailing the extent to which the claimant disputes the alleged defects.

The dispute will be referred when the claimant lodges the application and a Certificate of Service (Form 11A) within 7 days of service of the application (r 17.7(3)).

The Registrar may give a direction as to the action necessary to cure any defect in the pre-filing statement, within a prescribed time, or determine that the pre-filing statement served by the claimant is not defective (r 17.7(5)).

Where a direction to cure a defective pre-filing statement is issued and the claimant fails to comply with the direction within the timeframe specified by the Registrar, the pre-filing statement is taken not to have been served in accordance with s 317(3) of the Act.

Where the defendant has given notice under section 317(1) and subsequently serves a pre-filing defence, the pre-filing statement is taken to be served, and the defendant is taken to have waived any allegation in the notification that the pre-filing statement is defective (r 17.7(6)).

APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT

A defendant may apply to the President to have a pre-filing statement struck-out (s 151DA(3) of the Workers Compensation Act 1987) by completing an Application to Strike Out a Pre-filing Statement (Form 11E). At least 6 months must have elapsed since the defendant served the claimant with a pre-filing defence before an application can be made under section 151DA(3) of the Workers Compensation Act 1987.

The claimant is to lodge an Opposition to the Notice to Strike Out a Pre-filing Statement (Form 11F) as directed by the Registrar.

The President must not order that the pre-filing statement be struck out where the degree of permanent impairment is not yet fully ascertainable and the matter has been referred for assessment under Part 7 Chapter 7 of the Act.

ORDERS FOR ACCESS TO INFORMATION AND/OR PREMISES

A claimant may apply to the Registrar to direct the defendant to allow the claimant access to reports and other documents and/or access to premises, as and when specified (s 318I of the Act). It is anticipated that the claimant would already have requested access from the defendant, which has been refused, before seeking a direction from the Registrar.

For the claimant to apply for this direction, there must be no dispute that the degree of permanent impairment is sufficient for an award of damages. That is, the claimant must have already obtained a whole person impairment of at least 15% pursuant to sections 313 and 314 of the Act.

An application for Direction for Access to Premises/Information (Form 11A) must be completed and lodged with the Commission (r 17.8(1)). This form requests details of the information and/or the premises to be accessed, and reasons why the direction should be made. The Registrar may refuse to issue a direction.

A defendant may object to a direction before the expiry of the period specified in the direction for compliance by notifying the Registrar and the claimant of the objection in writing (r 17.8(4)). The defendant is excused from complying until the objection is determined.

The Registrar will determine the objection by setting aside the direction and/or varying its terms. Failure to comply with a direction without reasonable excuse is an offence.

MEDIATION

In most cases, a claimant must refer a claim for mediation before court proceedings can be commenced (s 318A of the Act). The claim cannot be referred for mediation until at least 28 days after the pre-filing statement has been served on the defendant. Where the defendant has not served a pre-filing defence within 42 days after the pre-filing statement was served, the claimant may commence court proceedings on and after the 43^rd day.

When the claimant lodges an Application for Mediation to Resolve Work Injury Damages Claim (Form 11C), the pre-filing statement, information and documents upon which the claimant proposes to rely must be attached. The claimant is required to serve the sealed application on the defendant and any other party as required by r 17.9(2).

The defendant must lodge a Response to an Application for Mediation to Resolve Work Injury Damages Claim (Form 11D) with the Commission within 21 days of registration of the application. The response is to be accompanied by the pre-filing defence and all information and documents upon which the defendant proposes to rely pursuant to Rule 17.10(1).

Parties are reminded that mediation in the Commission is not a determinative process.  Documents lodged in compliance with Rules 17.9(1)(c) and 17.10(1)(c) should be limited to those documents necessary for the Mediator to understand the issues and for the parties to engage genuinely in the mediation process.

A defendant may decline to participate in mediation where liability is wholly denied (s 318A(3) of the Act). A Certificate of Mediation to that effect will be issued by the Registrar and the claimant can then proceed to court. In all other cases, the defendant must participate in the mediation. Where the parties consider that the presence of a third party (non-employer) is required to settle the claim, the Registrar will invite, but cannot compel, the third party to attend the mediation.

If a defendant does not lodge a response, the claimant must lodge a certificate of service before the claim will be referred for mediation (r 17.9(4)).

When a claim proceeds to mediation, a Mediator will be directed by the Registrar to mediate the issues in dispute. All parties, including the worker and the insurer, are required to attend the mediation.

The Mediator will contact the parties to arrange a suitable date and time, within 5 weeks of the date of the referral, for the mediation. The Mediator may require further information to be filed and exchanged between the parties and may issue a summons requiring attendance at a conference (s 318D of the Act). For the purposes of the mediation, a Mediator has all the functions of the Commission under ss 357-359 of the Act.

Process Model

Mediation is defined by the Commission as a fair, unbiased and informal process in which parties, with the assistance of a Mediator, have the opportunity to identify the issues in dispute; develop options; consider alternatives, and endeavour to reach an agreed outcome that permanently resolves a claim for workplace injury damages.

Mediators do not have a role of determining the outcome of the claim or advising either party about the substantive outcome of the dispute.

Parties will be requested to agree that the mediation is confidential and privileged.

Parties, their support people and representatives (the parties) can expect from the Mediator:

• a fair, unbiased and informal process providing sufficient time for the parties, with their advisors, to explore options to permanently resolve the claim,
• facilitation of discussions between the parties and their representatives to achieve permanent settlement of the claim on terms arrived at by the parties themselves,
• neutrality, and
• confidentiality.

The mediation will commence with an introduction and explanation of the process of mediation in the Commission. This introduction will outline the role of the Mediator and participants; the mediation process and any rules of behavior, as well as give the parties an opportunity to ask questions.

Parties will be given the opportunity to present a statement of the issues in relation to the claim from their own perspective. Once the issues in dispute are identified and understood, parties will be encouraged to participate in joint exploratory discussions facilitated by the Mediator.

Parties will also have the opportunity to hold private meetings, with and without the Mediator. Parties may move between private and joint sessions as appropriate as they explore options for settlement.

Whether or not the claim is resolved, the Mediator will conduct a final joint session where the parties come together and the Mediator will note the agreement or facilitate final negotiations leading to either

• settlement of the dispute, or
• the issue of a Certificate of Mediation Outcome that records the final offers of the parties.

Finalisation

The Mediator must use his or her best endeavors to bring the parties to an agreement on the claim. A Certificate of Mediation Outcome is issued only where the parties fail to reach agreement. In that instance, the certificate will certify the final offers made by the parties in mediation (s 318B of the Act). The parties may then proceed to Court.

Despite the requirement that final offers appear in the Certificate of Outcome, any offer of settlement made by a party in the course of mediation must not be specified in any pleading, affidavit or other document filed on or in connection with court proceedings on the claim (s 318E of the Act). Further, those offers cannot be disclosed or taken into account by the Court before the Court's determination of the amount of damages in the proceedings.

September 2016

Notes:

This document is issued as a guide to parties in work injury damages proceedings. A disputed claim for work injury damages is subject to the requirements of the relevant legislation, regulations and rules.

Reference is made throughout this document to the forms to be lodged by the parties at various stages of the process. The relevant underlined forms are referred to by their title and can be downloaded from the Commission website at www.wcc.nsw.gov.au.