Many [Victorian] seriously injured workers, who are eligible for a common law damages claim, ask us how long it will take to settle their [common law damages] workcover claim.
Under the Victorian WorkCover, there are three (3) elements that you must establish to obtain common law damages. These elements are:
- You are suffering from a “serious injury“ (SI): this means that you must suffer at least a total permanent body impairment of a whopping 30% (or have been awarded a ‘serious injury’ certificate by a Court)
- Some other person was negligent – this can be your employer or a co-worker: this means that you must be able to prove negligence
- You have suffered loss and damage as a result (pain and suffering, permanent body damage, economic loss etc)
NOTE: a common law damages claim is NOT the same as a LUMPSUM. A lumpsum is the monetary (meagre) “compensation” injured workers are ‘awarded’ based on the percentage total body impairment they have suffered. In Vic you normally need a minimum of 10% total body impairment (physical) (5% exceptions apply for certain body parts) or 30% psychiatric in order to receive a (pathetic) lumpsum. If you happen to have suffered 30% or more TPBI and are eligible for common law damages claim, the lumpsum you received will also be DEDUCTED from the compensation you may be awarded.
You can read more about common law damages claims here >>
How long will it take for my workcover common law claim to settle?
What can we say… but that the common law damages claim is also a rather long and convoluted process and that it may take one to two years to settle, if all goes “well”. [Sigh,sigh!].
The following information is to be used as a general guide only – again, we encourage all of you to seek legal advice and representation as soon as possible after a workplace injury!!! and especially when starting legal proceedings.
From the date of lodgement your Notice of Claim for Damages (this is the form that starts the common law claim for your compensation, and that is usually prepared by your barrister), it usually takes six to 12 months (average just under 1 year) to have the settlement conference with the other parties.
Sometimes this period of time may be extended, usually because of unforeseen reasons. For example, if there is any significant change in your medical condition (i.e. your injury deteriorates and becomes “unstable”), it may be necessary to delay your common law damages claim until your medical condition has stabilised (same applies to delaying your permanent impairment assessment).
[**remember that there are TIME LIMITS on common law claims. For example if you received your Notice of Entitlement on 10 November 2011. The common law clock stops until 30 days after the impairment determination; therefore the new limitation date is 13 November 2013.**]
For example, if you were to require further [unforeseen] surgery to your injury, your lawyers may decide to delay lodging your claim until they know the outcome of the surgery. They will be better placed to value your case at the statutory offer phase if your injuries are stable. Note that this is very relevant to the issue of costs.
Breakdown of the timing of a Common Law Damages Claim
First you must apply for a serious injury certificate, regardless of whether you are deemed seriously injured or not. (Deemed n VIC means that you have a permanent total body impairment of 30% WPI or more, but if you are not deemed you can possibly apply via the qualitative test in Court, a process that takes longer). This process takes 3 months, and the Defense lawyers (who work for Workcover Vic) will usually send you to one or more independent medical examinations.
1. Notice of Claim for Damages
Your lawyers work with you to put together a Notice of Claim for Damages. Usually they will send you to a barrister to draft the final Notice for Damages. Once the Notice of Claim for Damages has been completed and then signed by you [ like an affidavit], it is then lodged with WorkCover [WorkSafe] and a copy goes to your Employer [this is the employer where you had the accident] .
WorkCover (WorkSafe) then has two weeks to decide whether or not the claim is “compliant“. This means have your lawyers answered all of the questions, and have you been thorough with your information to WorkCover/WorkSafe.
It is normal practice for WorkCover to seek further information during this period and to ask further questions. WorkCover also has the right to ask you (your lawyers) to provide information and any other proof of the injury and its cause.[This has to do with “liability” of course].
If WorkCover requires further information in order to make the claim “compliant”, your lawyers will need you to sign further “paper work”.
2. Investigation by WorkCover
Once WorkCover is happy that the Notice of Claim for Damages is compliant, they have about 6 months to “investigate” the matter. They may also arrange for you to be medically assessed(again!) and so will your lawyers. WorkCover will also need to advise whether they admit liability, and if so they may make a “settlement” offer.
3. Compulsory Conference
The next stage in the process is a compulsory conference with WorkCover and WorkCover’s lawyers. This compulsory conference must be held within three months from the date of the liability notice. For various reasons the period of time may need to be extended but more often than not the conference is usually held within the three month period, after the liability response from WorkCover is received. This is about 10 months (just under 1 year) from lodging of the Notice of Claim.
It is reported that more than half of all common law damages claims successfully resolve at the first compulsory conference.
If the matter does not settle at the compulsory conference, an exchange of final offers takes place.
Each party then has 14 days to respond to the other’s final offer, and if the case does not then settle, a court proceeding will then need to be commenced and that processing can take between six months and two years.
This section contains information on the main sections of the Act that relate to common law.
|Section||Section summary||Section detail|
|S134AB||Actions for damages||Outlines criteria for damages arising out of employment on or after 20 October 1999. This section of the Act covers current common law damages.|
|S135A||Actions for damages||Outlines criteria for old common law damages.|
|S135AC||Actions for damage||Extends the time limit for workers to bring old common law damages claims beyond 31 August 2000 for injuries caused pre 12 November 1997 but the incapacity not known until a later date, for example, cancer cases.|
There is a lot more detailed information about common law damages claims on the Online Claims Manual (Victoria), under “Entitlements – Common Law” – the following information is copied from the Online Claims Manual:
Overview of Common Law
WorkSafe, panel firm and agent work together in the management of common law claims. This document summarises the agent’s involvement.
After WorkSafe receives SI applications and allocates them to panel firms, there are 4 phases in managing common law claims:
Serious Injury application (SI)
- If SI certificate is granted, the claim proceeds to the conference
- If the SI application is denied, the worker can apply to the court by OM
Originating Motion (OM)
- If the court grants the SI, the claim proceeds to the Conference
- If the court denies the SI, the process is finalised unless the worker appeals
The conference process attempts to negotiate damages.
- If settled, the claim can be finalised
- If not settled, strict time limits apply in which:
– a statutory offer must be made by WorkSafe and
– a statutory counter offer is made by the worker
– If either offer is accepted, the claim can be finalised
- If the worker is not satisfied with any offer, he/she can issue a Writ and have the claim heard in court
If the worker or the agent is not satisfied with the judgment/settlement, he/she can appeal.
Resolution of disagreement
When the agent, employer and panel firm cannot agree on a critical decision, the agent must:
- discuss the matter with the panel firm to attempt to reach agreement
- request arbitration by WorkSafe.
The employer and agent can attend arbitration
Common law phases
Common law for injuries sustained on or after 20 October 1999 has four phases. Managing a common law claim begins when WorkSafe receives a SI application from the worker. The role of the agent is mainly to respond to requests and recommendations from the panel solicitor. For a summary of agent activities, see appendix 13.6.3 – Overview of common law.
|If the SI certificate is:·granted, the claim proceeds to the pre-litigation conference·denied, the worker can apply to the court by originating motion.|
|If the court:·grants the SI certificate, the claim proceeds to the pre-litigation conference· denies the SI certificate, the process is finalised unless the worker appeals.|
|The conference process attempts to negotiate damages. If:· settled, the claim can be finalised· not settled, strict time limits apply in which:- a statutory offer is to be made by WorkSafe (default causes a deemed offer of NIL)- a statutory counter offer is to be made by the worker (default causes a deemed offer of the maximum)-if either offer is accepted, the claim can be finalised.If the worker is not satisfied with any offer, they can issue a damages writ and have the claim heard in court.|
|A court will determine the damages amount payable to the worker (unless settled prior to hearing). If either the worker or WorkSafe is not satisfied with a court decision either party can appeal.|
Managing common law claims
While a claim is in the common law process, agents are required to:
- provide panel firm with relevant documents and files
- arrange investigations and reports and action requests from WorkSafe and the panel firm
- update case estimates as advised by the panel firm
- consider panel firm advices and provide instructions
- keep the employer and panel firm up-to-date with developments
- ensure settlement monies and costs are paid promptly, so no further litigation or interest payments are incurred
- cease weekly payments, as appropriate and when advised by the panel firm
Serious Injury (SI)
SI timelines for agents
|Complete these actions in time to meet statutory and procedural requirements.Within 120 days, WorkSafe must advise the worker, in writing, of the SI decision.The timeline starts from the day WorkSafe receives the SI application.|
Originating Motion (OM)
OM timelines for agents
|Complete these actions within the time stated to meet statutory and procedural requirements.The timeline starts from the day WorkSafe receives the OM.|
|Receive OM||If the agent receives an OM, it must be forwarded to WorkSafe within 24 hours.|
|Day 3||Send relevant claim file(s) to panel firm.Advise employer of OM receipt|
|Day 8||Latest date to send files to panel firm.|
|8 weeks before OM||If unable to agree on SI decision, the agent is to request the panel firm to arrange arbitration by WorkSafe.This must be no later than 8 weeks before the OM hearing.|
|Within 24 hrs of SI decision||Forward SI certificate or denial to the panel firm within 24 hours of their request.|
Conference timelines for agents
|Complete these actions within the time stated to meet statutory and procedural requirements.|
|Before Conference||Within 48 hours of receiving panel firm’s recommendations, the agent must:· provide instructions to the panel firm·contact the panel firm if they disagree with the recommendations|
|Settlement reached via -Conference-Statutory Offer-Statutory Counter Offer||Within 24 hours of settlement, the agent receives from the panel firm:· advice of outcome· copy of signed release form· advice if payments are to stopAfter settlement, the agent is to pay:·settlement monies within seven days of advice by panel firm·legal costs within 30 days of advice by the panel firm/cost consultant|
Writ timelines for agents
|Complete these actions within the time stated to meet statutory and procedural requirements.|
|Receive Writ||If the agent receives a Writ, it must be forwarded to WorkSafe within 24 hours.|
|Pre-Trial||Within 48 hours of advice from panel firm, the agent is to:·instruct panel firm as requested· arrange arbitration with WorkSafe if they disagree with the panel firm|
|Trial||Agent receives daily progress report from the panel firm.|
|Settlement / Judgment||Agent receives written advice of the judgment within 48 hours and must then pay:· settlement monies within seven days of advice by panel firm· legal costs within 30 days of advice by the panel firm/cost consultant|
Maximum Benefits for injuries after July 2004
Benefits – injuries on or after 1 July 2004
With thanks to Workcovervictim for the research
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