Any workcover issue can lead to disputes and/or litigation, and many do. If you have a particularly aggressive workcover insurer that loves nothing else but deny cases, benefits and settlements, it will often lead to legal hearings over adversarial decisions the workcover case manager made on the claim. Some workcover claims/cases which are in litigation are more complex than others, but all have one thing in common: they (generally) drag on forever. Let’s look at some of the factors involved that (may) lead to protracted litigation/settlement.
Why do workcover claim settlements drag on
Given the extremely adversarial nature of our workers compensation system, frequent disputes and litigation are unavoidable in just about any workcover case/claim. This is particularly true when there is a very aggressive, nasty and deep-pocketed workcover insurer involved. Likewise if there is a particularly aggressive case manager involved who denies everything, it will lead to frequent legal hearings over decisions this case manager made on the claim.
There are obviously different people involved in a workcover case, such as the injured worker, the case manager, and the lawyer (defense and injured worker), and they all have different personalities. Some defence lawyers/legal firms and case managers are more aggressive than others. Other external factors are also involved once a workcover claim moves into the litigation phase.
Needless to restate that the ultimate goal of the workcover insurer (and case manager) is to end the legal proceedings by paying out the smallest amount as possible. Conversely, the goal of the injured worker is obtain as much money or benefits as possible for their loss and damage. This obvious “conflict in interests” can and will often lead to months upon months, if not years of legal “back and forth.” Let’s explore what can drag out the progress on litigation/progress on settlement?
Things that can drag out legal proceedings and workcover case settlement
1. The case manager or the workcover insurer is “not open” to settling a workcover case
Both injured workers and their employers dealing with aggressive workcover case managers who are not open or willing to settling workcover cases have indeed a very serious issue.
There are many serious workcover cases are totally and legitimately compensable and which can cost a hell of a lot of money to the insurer. The aggressive, bonus-greedy and brainwashed case manager may not be willing to accept this, or may even be resentful that an injured worker is actually genuine (and not another malinger/fraudster). Whilst this sounds far-fetched, you would be surprise to know that it happens more than you think. In many cases the case manager’s boss (manager/team leader), who should be involved and up to date on the case, simply is not! S/he may be too busy and may have overlooked the case. So it may be worth bringing the matter to the attention of the case manager’s boss.
2. The injured worker’s employer is unreasonable
Sometimes the workcover insurer/case manager has to deal with an employer (their client) who is just not reasonable and who plays hardball. It is not uncommon for employers to harbour resentment (on a more personal level) against a litigating injured worker. Sometimes the employer simply wants to scare other injured workers from pursuing legal action by showing they’ll play hard; which won’t help the case to settle quickly.
3. The injured worker’s lawyer(s) involved are slack
A busy law personal injury firm has generally (too) many cases, with many busy lawyers who just can’t make it to every legal hearing, arbitration or mediation, which leads to that hearings/mediation/arbitration being rescheduled or postponed. Likewise the same applies to the defense lawyers! How often have you had your case rescheduled because of the workcover defense lawyers? You bet the case is not going to be going anywhere anytime soon if both sides are busy and not proactive.
4. Sometimes the injured worker is not realistic
Litigation a workcover claim obviously may lead to a lot of stress and bitterness on the part of the injured worker. Many injured workers feel resentful about having to get a lawyer to help them getting “what is legally theirs,” be it benefits, or medical treatment or compensation.
Sometimes when the workcover insurer/case manager asks for a injured worker’s demand on what could resolve the case; it is something that is a little unrealistic. Either the injured worker wants an unrealistic payout (settlement), or some medical treatment that the insurer does not feel is required or reasonable to pay for.
The injured worker’s lawyer will work for the injured worker. Even if the case manager/insurer puts forth a reasonable settlement offer, and even if the injured worker’s lawyer(s) feels it is quite fair, the injured worker may still reject it. Offers and counteroffers are made, and the case eventually ends up court… and many unrealistic injured workers often loose their cases and are ‘punished’ with having to pay the insurer’s legal costs!
It is not uncommon to hear that some lawyers have a problem “controlling” and counselling their client (injured worker), stalling the litigation process.
In the end, if the case proceeds to court, a judge may have to decide what is or is not reasonable/ fair.
One thing of note is that the majority of cases settle out of court, sometimes on the court steps. It is well known that workcover insurers detest having to go all the way to court.
Do your homework and read case laws to get an idea of what your case may be worth. Did you know that the average compensation settlement in Victoria is around $80,000?
5. The courts are clogged
There is usually a long waiting list to have a matter heard in court.We have heard about numerous cases in the past 6 months or so, where the Victorian Supreme Court has not been able to accommodate the injured worker’s case on the day it was due to start, and the case has then been adjourned for several more months. In one case, the Court adjourned the case from August until the following year in April.
In another case, the Court had given a priority hearing date as the injured worker suffered a very severe psychiatric injury. However even with a priority hearing, the Court could not accommodate this injured worker and her/his lawyers on the day the case was due to start. Instead that case was adjourned for a further 4 months.
This is obviously extremely frustrating for the injured worker, who has usually waited on average 15 to 18 months (after their injury has stabilised) before the case could be heard. It is also adds unnecessary to legal costs, as often barristers and solicitors wait around for several days, to see if the Court is able start the case.
The Court lists several cases to start on any given day – this is done in the hope that many cases settle and that the court can then hear those cases where there has been no settlement. However it appears that fewer cases are settling and cases are running (much) longer than estimated.
So for the many injured workers there is really no certainty in when their trial will commence. It is another frustrating part of the litigation process.
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