Settlement of a workcover claim out of court

workcover-claim-settlement

In this article, we’ll outline the main benefits of settling an injury (common law) damages claim OUT of court. In doing so we also wish to highlight that in some cases, injured workers may well believe that their case is worth much more than the workcover insurance company is willing to pay, and also believe their case is worth much more than it is actually worth. Indeed injured workers hear or read stories about large settlements and/or court verdicts and may get caught up in the (very expensive) litigation process.

Settlement of a workcover claim

NOTE: in VIC you must have a serious injury (30% WPI or more by means of a permanent impairment assessment. or obtain a serious injury certificate by means of court using the narrative/qualitative test) AND must prove negligence on the part of the employer, to be eligible to lodge a common law damages claim. To find out if your state allows for common law and the criteria you need to meet see our legislation section.

 

An employer (therefore their workcover insurance company) or an injured worker can actually settle a disputed common law damages claim at any time. In other words, settlement can happen before court proceedings are issued [and also] after court proceedings are issued; and a settlement of a common law damages claim can even happen when you’re partly heard in court.

The more straight-forward the injury is, as well as the circumstances – especially negligence– in which the workplace injury occurred the more likely the chance of early resolution or settlement of the claim.

For example, if a worker falls at their workplace and breaks his back because the flooring was wet (from cleaning) and there were no warning signs up (eg. warning: wet floor), that would be a fairly clear case of negligence on the part of the employer.

Settlements are generally agreed between the parties (lawyers) acting for the injured worker and the employer and/or its workcover insurer.

In common law damages cases, when negotiating a settlement both parties must consider the nature and extent of the injury, how the injury affects the worker’s life, and how it affects the worker’s ability to earn an income.

Once all the information has been considered, the parties then “calculate” the amount of damages or weekly payments that should be awarded to the seriously injured worker. But in doing this, both representatives (lawyers) essentially make an experienced guess of what verdict (award) a judge or jury would likely have come up with if the matter had proceeded all the way to court (trial).

Settling a damaged claim OUT of court has many benefits. In essence it removes the omnipresent risks (there is ALWAYS A RISK) and COSTS associated with litigation.

If any of the parties (injured worker or employer (workcover insurer)  go to court (trial), they will have a lot of costs, and the outcome is almost always uncertain.

Where any litigation (going all the way to court/trial) involves risks for both parties, settlement out of court gives a known outcome, reduces the cost exposure (very important for the injured worker), and also prevents matters from being aired and documented in court (i.e matters of a more personal nature for the injured worker such as bullying, harassment etc; and matters that may adversely impact upon the reputation of an employer).

It is well knows in the “industry” that both parties tend to prefer to negotiate a settlement for a damages claim so that they both have a known outcome. It obviously may not be the best outcome for one party (injured worker) or the another (employer insurer), but at least they know, and they take away that risk and associated costs of litigation.

It’s very important to know that once settlement has occurred, you can not go back unless there’s a legal argument such as proving that there was something fundamentally wrong with the information upon which settlement was based. This is extremely rare.


To accept or not to accept a settlement offer is the question

A few weeks ago I heard from an injured worker who was offered a settlement (out of court) by the workcover insurer (employer) for the amount of $70,000. The injured lawyer strongly advised the injured worker to please accept the offer (before going to trial) but the injured worker flatly refused. The case went all the way to trial and the injured worker’s representatives tried it well…But the jury only awarded the injured worker $15,000!!! OOPS!

Unfortunately we do hear of quite a few such unfortunate outcomes.

In some cases, injured workers take on a belief that their case is worth much more than the workcover insurer is willing to pay, and in some cases they believe that their case is worth far more than the case is actually really worth. As stated above, injured workers hear and/or read stories about large settlements and verdicts, some get caught up in the litigation process, and some -yes- simply have an inflated value of their own injury.

It’s may help to know that the average payout (as in damages claim) in Victoria is only $80,000!

So, before you refuse a reasonable settlement offer please read the following points:

  • First of all, you should hire (or have hired) a decent and very experienced lawyer (or law firm)
  • Your lawyer will have (vast) expertise in the area of persona injury law
  • Your experienced lawyer will expect that you (the injured worker) will take seriously his/her recommendations with respect to settlement when, and if, that occurs
  • Although ultimate settlement authority is your decision, your lawyer will hope that you (the injured worker) will trust his/her judgment [and that of other lawyers in his/her office] in evaluating and assessing the merits of your  case.
  • Have confidence in your decent, experienced lawyer(s)
  • It is important to meet with your lawyer from time to time and be sensitive to their concerns (and vice verse). Try not “getting out of hand.” Stay realistic about the value of your claim, preferably before you begin the settlement process.
  • Before the settlement process starts, establish a reasonable $ $ $ settlement range with your lawyer
  • Understand that the value you place on your case is not necessarily the insurance company’s value or the amount that a jury would award you on a given date

a. The value of the case/claim placed by the injured worker
This value may be high or low depending on how reasonable you are. If your own guessed value is high, your lawyer should inform you that you are entitled to such (inflated) an opinion but that, in reality, you will probably never see it, even if the case goes all the way to court and trial.

b. The value placed by the workcover insurance company
This value is one that a particular workcover insurance company may be willing to pay at a certain time for a particular case/claim on a settlement basis. Beware that workcover insurance companies are (very) “conservative” especially in small-ish cases (= non-catastrophic cases). The workcover insurance company will try to place a value on your case claim that will -of course- encourage settlement. Also it’s worth knowing that once the insurer has placed such a value, they are usually quite firm in their position. Saying that, always expect the first insurer’s offer to be shockingly/insultingly low! It is not uncommon that a first insurer’s offer is ZERO ($0), or, for example that you had a value of $800,000 in mind but the insurer’s first offer is a miserable $100,000.

c. The value a jury would award you (your case) on a given day in court
This third value of you case is the possible verdict a jury would award given the set of facts put to your case. This value can best be described as a sort of bell-shaped curve. The low value could be zero in some cases -especially-if liability is an issue or could be less than or equal to all the weekly payments you have received to date! (remember that you have to pay back all your weekly payments (and more) if your receive a settlement (compensation) in court). The mid-range value is often consistent with the workcover insurance company’s settlement range. At the right end of the bell-shaped curve is the unlikely high verdict that a jury would award on the very best day if all factors went in perfectly for you (the injured worker).

  • Using the above “bell-shape” approach you can see that if the workcover insurance company’s offer is in or near the mid range the bell-shaped curve, settlement should be seriously considered
  • If you (the injured worker) still refuse (for whatever reason) to accept an offer deemed reasonable by your decent and experienced lawyer simply request/obtain  a second opinion. Make sure you go to a reputable lawyer for that opinion!
  • Please take the time (a much as you need) to clearly understand the costs and problems of litigation (taking your case to trial). Many problems of litigation include testimonials (including very costly expert witness testimonials), interrogatories, your costs (legal fees) and the lapse of time getting to trial (12-18 months at least -it will take at least 1 year,  sometimes 2 and several thousand dollars to take your case to court )
  • Also understand that in some cases, the workcover insurance company will lower the ‘commercial’ value after litigation has been started, especially if weaknesses (e.g negligence) are disclosed in your case
  • It is also well known that juries are reluctant to award significant verdicts (compensation) in small or small-ish cases such as soft tissue injuries. Go and check out some of the recent low verdicts on law databases that have occurred in small cases or cases similar to you. It is also true that quite some juries are negatively influenced by media (fraud cases, injured workers ripping off system, “whiplash’ comp etc.)
  • Beware at all times that the potential jury verdict you could get could be a fraction of the workcover insurer’s final offer!
  • If you still insist that the settlement is not enough, your lawyer may “bite the bullet” and start litigation. If your lawyer believes you have a clear liability (negligence) case that will result in some verdict or the possibility of an increased settlement offer, your lawyer will tell you that litigation is required or an option. Your lawyer will also tell you when s/he does not believe it is in your best interest to start litigation. Beware that some decent experienced lawyers may (try to) release you – end your no win no fee contract if you are extremely unreasonable with respect to the commercial value of your case.  (In such a case, your lawyer may possibly release the file to you with the expectation that s/he will be paid either when the case settles or at the time s/he releases the file for the time s/he has spent on the case so far. This is a last resort tactic but, if you are way out of line with respect to the value of your case, your lawyer may have no choice but to release you and let you  pursue the claim with another lawyer).

 

donate-download-tipSince the law requires that the ultimate settlement authority rests with the plaintiff (that is: the injured worker), you may be interested in our ‘smart tip’ in exchange for a donation to help pay for the hosting fees of our site.


Questions and answers about settlement

It has been said that it has become more and more difficult to convince the average injured worker that acceptance of settlement offers from greedy workcover insurers is in their best interest. Many injured sods hear or read about huge damage awards and often assume they are entitled to the same. Not long ago a decent very experienced senior PI lawyer told me that he finds that he is now spending as much time working with the injured worker as he does trying to convince the workcover insurer to make a reasonable offer. He was kind enough to share the most common questions (and answers) asked by injured workers about their settlement.

question-workcoverI do not believe that I am getting enough money in my case/for my injury/pain and suffering etc. Why don’t we simply go to court?

answer-workcoverIt is not always possible to settle a case for the amount of money the injured worker requires. It is your decent, experienced lawyer’s job to make sure that your settlement (compensation/common law damages claim) is fair and consistent with other settlements paid to other injured workers for similar injuries. You have, of course, a right to place a (commercial) value on your injuries, pain and suffering. loss of enjoyment of life, wage loss etc. but the workcover insurance company has also a right to place its own value on your injuries, even if that value is much lower than your own expectations. When the injured worker and the workcover insurance company cannot reach agreement on the value of a case, it is up to jury (or judge) to decide. The goal of your decent, experienced lawyer is to achieve a settlement that, in his/her opinion, and based upon his/her expertise, is close to the potential award from a jury/court.

In your lawyer’s opinion, the offer that you (and your lawyer) now have on the table from the  workcover insurance is well within the potential verdict range in this case. It may be closer to the top range of the verdict/award scale than the bottom range. Or it may be that the offer is closer to the low range of the potential verdict/award in your case, but it is still well within the range of a potential jury verdict and is being paid now rather than 2 years from now. If you decide to go to court (trial), it will be a long and expensive process before your case goes to trial. When that trial takes place, the chances of you obtaining more than a few thousand dollars more than the present settlement offer are very slim and, in fact, the chances are equal that you may get less than the present offer! For these reasons, your lawyer may not recommend gambling on a trial, when the chance of obtaining significantly more money is against the odds.

question-workcoverWhy are the chances that I will receive less money (settlement) equal to the chances I will receive more money?

answer-workcoverYou must understand that when a case goes to trial (court) the workcover insurance company will hire com­petent defense counsel (lawyers) to do anything possible to either reduce the potential verdict or even to win the case outright. In some cases, “errors” are made during the course of trial that result in an appeal. If the insurance company loses this case and has to pay significantly more than the offer on the table, they may decide to appeal the case, which will drag it even further into the future. Also, you must remember that any amount of recovery is reduced by legal’ fees and additional court costs. So, if you go to court and win $5,000 more than the last offer on the table, you will receive only a fraction of that amount and possibly less. If you settle your case now, you will receive a check (within 6 or so weeks). If you decide that you want to go to court, all you have left is a disputed lawsuit with at least a 12 to 18 months wait before you even walk into the courtroom.

question-workcover I (the injured worker) believe that you reduced the potential value of my settlement. Why didn’t you ask for more?

answer-workcoverMany injured workers believe that the more you ask for in a settlement counter-offer, the more the insurance company will offer you at the time of settlement. This is not true. High figures are reserved only for catastrophic injuries where the worker has been severely injured and the liability (=negligence) is clear-cut. The figure your lawyer requests for settlement is based upon logic, reason, and experience as to the potential verdict your case may have in a court of law. In addition, when you accept a settlement out of court you do NOT have to repay all your weekly payments! For some injured workers this can be a substantial amount (say 3 years at $40,000 a year = $120,000 – or 5 years at $30,000 = $150,000!!!). You lawyer will generally request a settlement figure PLUS KEEP (wich means you keep your received weekly pay AND your lumpsum).

What’s of extreme importance to know is that, at least in VIC, if the court (Judge/Jury) awards you less than the statutory offer (made in the mediation/negotiation by the Defense) then the injured worker becomes liable for the cost of the legal proceedings for the other party as well! (*) Which may leave you in debt! So there is only a measly 10% margin, not much room for speculation indeed!

(*)

  • if the judgment or order is for not less than 90% of the worker’s counter statutory offer but greater than the agent’s (or employer’s) statutory offer, the agent (or employer) must pay all costs
  • if the judgment or order is equal to or less than the agent’s (or employer’s) statutory offer the worker must pay all costs
  • if the judgment or order is less than 90% of the worker’s counter statutory offer but greater than the agent’s (or employer’s) statutory offer each party must pay their own costs

tipRead more about how damages are awarded and calculated, and what you need to pay back (weekly pay, lumpsum, Centrelink etc) in our article: To drop or not to drop the economic loss part of a common law damages claim.

 

[Article dictated by WCV and transcribed on her behalf]



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5 Responses to “Settlement of a workcover claim out of court”

  1. Hi Guys and girls,
    Having recently been through this entire process i would like to offer some advice.
    Being prepared is of the utmost importance.
    Be prepared for,
    – The insurer or the Solicitor of the insurer to dig through your life, even if some facts are completely unrelated to your injury claim they will be trying to establish that you are not a proper and decent person, and i mean anything in your past (e.g. a speeding fine or a character reference of some form).
    – To be insulted, as far as all parties involved go they are merely doing a job, the injured and the injured alone have any idea of how the injury is and will affect your life.
    – Realistic figures from your lawyer both costs and likely outcome and then add 15% to the cost figures and subtract the same amount or slightly more from the likely outcome or range of damages figures.
    – Do your home work, do not base your figures on what you want or what other cases have settled for, you need to be very realistic as to what your future employment prospects are going to be and possibly the length of time it will take you to retrain for suitable employment.
    In addition to this do up a spreadsheet (this will spell out that you are being very realistic in your expectations) of all your costs and general household expenses (and i mean everything) and multiply that by how long you expect to be out of work taking into account that if you are in a dual income household that you only own a percentage of the household debt as far as anyone else is concerned. If your injury prevents you from returning to the same work and that is the only skill you have you should take into account the possibility that you will need to study in some way shape or form to gain a new career direction.
    – I have heard of very few cases that anyone keeps their current employment with the employer that caused the injury. Be prepared for a length of time without an income leading up to conciliation and definitely prior to trial. Be aware that if you are starved of funds prior to negotiation you are going to be more willing to break and accept what they offer. Obviously both the insurer and the employer know this and will play on it.
    – Monies received from Centrelink or cost incurred by Centrelink (rehabilitation services or Job Network costs), anything done through Medicare relating to your injury, Monies owed to child support, will all need to be refunded upon settlement. You need to take this into account also.
    – Do not trust anyone, the people around you at work will turn against you, doctors and IME’s will give reports based on who is paying the bill. Watch what you say to anyone and everyone, it can be twisted or may either directly or indirectly get back to your employer or workcover.
    – Above all else don’t read to much onto others stories and base your expectations of them. There are to many variables, injuries could be the same but the people involved are not. Judges are all different, solicitors are different, workcover officers are different, incomes and lives are different and most importantly the injured workers are all different.
    – You may have dealt with stress in your life, but this is nothing in comparison to what you are going to go through. You will be looking over your shoulder all day every day, you will be on edge 24hrs a day, you will be constantly trying to guess a lot of things and obviously the longer this all goes on the worse it will affect you and everyone around you.
    BE very prepared to feel isolated and alone, i have spoken to many people going through this and that is one thing 90% of them have said especially for those that have non-visible injuries. Although everyone around you will know what is happening, you will still seem like you and they will forget about the injury and the stress you are under. Groups such as this one and many more out there, you will learn to rely on to vent and get ideas.
    – Dont in anyway expect to get rich, common law proceeding are only a way to get you retrained and back working again is some form.

    This is no way trying to scare anyone, if you are prepared although stressful it will be a lot easier on you and your family. An will help you to be more realistic as to what your expectation and outcomes will be.

    In saying all of the above, i was prepared, i was realistic and i did just as much homework as my solicitor did including the above mention spread sheet.
    The solicitor cost me a small fortune but he was good at his job and really knew what he was doing.

    Also know that negotiation on settlement can happen at anytime not just in the 14 day MFO period after your conciliation meeting. Do not make a rash unreasonable decision thinking it is your last chance.
    But also know the costs keep ticking over the longer it all goes on.

    I settled prior to taking the matter to court, for a number of reasons. The costs associated with going to court in addition to the extra monies i would have had to pay back to government agencies, also taking into account interests savings on current loans and potential earnings from the amount received in comparison to the losses in the estimated amount of time it will take your case to be heard in court.

    I hope this sheds some light on the process for some of you.
    Stay strong and be positive, as hard as it is negativity will only tear you apart.

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    • @Metasis, thanks for your OUTSTANDING summary of what you can expect if you go to trial (court). Likewise @Patsy, you summed up very well how stressful and utterly HUMILIATING going to court can be (and often is). Defense (workcover) lawyers and barristers will rip you to pieces, some are so evil I have no words to describe them. They make you feel like a criminal, liar, malingerer and what-not, and as stated in the article “workcover insurance company will hire com­petent defense counsel (lawyers) to do anything possible to either reduce the potential verdict or even to win the case outright”. For most I know who have gone down that path it has been a shocker and those injured workers are left traumatised beyond belief.

      As Metasis stated expect at least 15% more in your legal fees and at least 15% less of the compensation you thought you’d get.

      I don’t want to come across as anti-court, don’t get me wrong, sometimes it’s your only option. But I don’t want injured workers to have FALSE hope, and go to trial, to be left shattered, emotionally broken, raped and with the same, a smaller or no compensation (or even debt).

      In fact did you know that the most seriously injured workers NEVER ask their lawyer what their case is ‘worth’? When you’re truly stuffed, no amount of money can fix you, none. In fact receiving coNpensation causes you further stress as you start realising oh my god, I only received 300 or 600 thousand dollars (net), I am 36 years old and can never work again – that money is going to last me only 10-15 years just to eat, pay bills and then what???? Once you receive settlement there is no more weekly pay (unless you drop that part, aka economic loss and stay a slave to the workcover insurer – IME after IME etc etc in an attempt to cut off your weekly pay).

      Settling out of court also includes not having to pay back weekly payments, not having to pay back your lumpsum, not having to pay TAX! So let’s say your lawyer estimates your case to be worth $250,000. The insurer makes an initial offer of $30,000. Your lawyer and barrister (and perhaps a QC) will get together with you and discuss what they believe you would get in court. One believes you would get a verdict of around $150,000, the other believes you may be lucky and get as much as $250,000. What do you do? Your lawyer says there is ‘no way’ s/he’ll put a 3 on the counter-offer (as in $300,000 – way too risky if it ends up in court and you become liable for the insurer’s legal costs!). Go halves! K150+K250 divided by 2 = $200,000 and make it NON NEGOTIABLE (you don’t want the insurer to play games – tell them take it or leave it). The $200,000 offer you make includes KEEP (no repayment of weekly pay and you’ve been given $150,000 over for example 5 years – and no repayment of the lumpsum of for example $50,000 you received for your permanent impairment, plus it is completely TAX free). The insurer agrees and you get $200,000. Take off your legal fees (let’s say $50,000) and you are left with around $150,000 in your pocket (if you don’t have to repay Centrelink/Medicare – because you have to, even if you settle out of court).
      In effect this means a judge/jury verdict of about $400,000 to $450,000!!!! See where I am getting at? And you achieve this ‘verdict’ without much (or any) stress, no humiliation, no rape-like cross examinations on the stand by the defense, no public record of your case (and life really), much less legal costs (going to trial is outrageously expensive, a barrister can easily charge $5000 per day, your case goes for 7 days….$35,000 down the drain + all the costs of expert witnesses (for you), medical reports, court fees etc etc.

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  2. After waiting ten years I went to court and it was a disaster my decent, experienced and reputable legal team had no intention of fighting for me. My legal team had planned that my case would run for 7 days and there would be no other witnesses. So after seven days on the stand where the other side never mentioned the negilience of my employer, it was all about me. The victim became the perpetrator even though they had damning evidence against my former employer. I was greedy, I was this, I was that. ‘Bast… barristers’ have no trouble turning a jury against you especially when your own ‘team’ do nothing, not one ‘objection’ after hours and days of derogatory questioning.
    On my last day (I did not know it was my last day) I was asked to meet Counsel 3 hours prior to hearing. They were desperate and said we had to settle, as the jury does not like you, well that was what I was told. They stated that the Victorian Workcover had made an offer of $150,000.
    Lawyers and Counsel started discussing their respective costs and stated that the offered amount ($150,000) would not cover their legal costs, so we will have to take a reduction, so we will just have to accept the $150,000 as full payment. “You will owe us nothing.”
    “You have had a win and this is the best you can do.” I will not explain my emotional state at this time as I am sure you will understand.
    I instructed Counsel to continue my case for one more day and I will pay their costs. None of my witnesses at this time had given evidence, two who had been ‘bullied’ by the same person as I and who had accepted workcover claims I feel would have greatly assisted my case.
    Their response was “don’t be ridiculous.”
    They continued verbally pressing me to sign and stated that they were suffering a loss and had done everything they could for me. I began to feel guilty for their loss. I verbally stated that I did not want to sign.
    Senior Counsel commands “Mrs …..! Will you please instruct me to tell them the offer is accepted.”. I felt close to collapsing under this pressure and was told, “Don’t be so selfish.”
    I signed the documents so the pressure would stop.
    I felt threatened and intimated by the settlement process where the only real outcome was that the lawyers were paid. I received nothing, fortunately for me this was not about financial compensation it was about ‘setting the record straight’ and restoration of a destroyed reputation. But the worse was still to come and that is a story for another day.

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  3. Thanks for the insightful article. Very helpful. Injury damages claims in NSW at least are not even possible for all injured workers because of the requirement (amongst other things like meeting a threshold impairment, settled your pain & suffering claim, etc.) to prove negligence. And even if you are able to prove negligence there is the risk that there will be a finding of ‘contributory negligence’ which will range in percentage % depending on your circumstances. That’s the scariest part because effectively even if you were awarded a settlement amount – the contributory negligence component could deduct a massive amount from your payout. I have read findings of 50% contributory negligence – which can leave you worse off than if you had just stayed on Workers Comp benefits for as long as you are entitles to and not lodged the injury damages claim in the first place.
    An injury damages claim in NSW can only claim for lost income – what you were likely to earn up to retirement age. The pain and suffering component is a statutory amount that is paid out before an injury damages claim and is not much. There is no other claim that can be made.
    Even worse is the fact that the calculations made to determine your loss comes nowhere near close to the actual amount you would have earned from the injury date up to retirement age. It is not just a case of multiplying the years x income to come to the figure. The calculations used are complex. Stats are used to work out the average retirement age for the career you were in. Health is a factor, education is and other factors. The closer you are to retirement age is also a factor that reduces your settlement amount – because a component of the calculations is not retrospective. So the longer it takes to settle, the less you will potentially end up with each birthday that goes past.
    You will be given a ‘best case scenario’ calculation based on everything going your way in court. Even this amount falls way short of what you would have earned both in gross and net amounts if you did not get injured and were able to work up to retirement/even to several years before retirement age.
    You will always be worse off if you can never work again because you will never be fully compensated for what you would have earned. You won’t even get 50%, you would be lucky to get 1/3 of actual earnings lost (this is for NSW – not sure but I would be guessing other states are the same), down to 10% or even less! And that is without the contributory negligence factor!
    It is well known that insurance companies use tactics to downplay your claim and intimidate you with hired gun barristers to put as much pressure on you as possible. They will shout, laugh, ridicule, ignore you, be belligerent and aggressive. Intimidation 101 is their strategy and for psychologically injured claimants they will go harder to scare you off.
    They will ALWAYS start with ridiculously low offers. NEVER realistic offers. They want you the claimant to fold. They want you to give up and concede defeat, take the low offer and walk away. They do not and never will care if that means you ending up with severe financial difficulties for life.
    You really need a good lawyer who knows a lot about injury damages claims. And make sure you fully understand their fee structures compared to others.
    Another terrible reality is that all judges are different. There are good, bad and average ones. Some have little experience in injury damages claims and others are just not interested. Some will make sure they are familiar with the case and prepare, others just sit in court and listen to the evidence as it unveils. Judges are meant to be impartial but in reality there is always bias and different interpretations of the evidence and the law.
    Lodging an injury damages claim – even if you know there is negligence on behalf of your employer, needs to be carefully considered. The no win, no fee deals are good but there is a point where there is no turning back. If you pull out of an injury damages claim prematurely you will be up for fees up to that point which can be very expensive. It’s a bit like ‘Million Dollar Minute’ where you get to levels where you have ‘safe money’. Mediation is one of those. If you take the offer there then legal costs and other fees relating to disbursements and past payments of workers comp benefits will generally be covered. If you go beyond that then you are back into risk territory. You then need to rely on settlement before a court hearing. There may be a few offers/counter offers along the way.
    Most matters settle before a hearing. As the article above reveals, there can be settlement offers on the day of hearing, during a part heard hearing.
    Most claimants don’t wish to go to court, but by the same token most insurance companies don’t either as the risk factors in the article above outline.
    But if the settlement offers have been so low to not enable you to survive financially into the future AND your lawyer is very confident that your case is very strong then I believe that in these circumstances taking it to court may the only way. You just need to psychologically prepare for a possible loss, no matter how remote and work out a ball park figure as to what you would be up for in the worst case scenario. If that means bankruptcy/poverty then you need to be able to accept that and hope that there is a hell to accommodate insurance companies and their lawyers in the afterlife!
    If every matter went to court the insurance companies would take on huge losses. Your lawyers are not going to risk taking a case on if they do not think it is a likely win because then they have spent a large amount of time and money for nothing when they could have been working on a case that will pay out. They also want to promote their company’s profile with being successful in claims.
    Insurance companies on the other hand don’t have that choice so their job is to downplay every case as much as possible to mitigate potential losses they could acquire in court.
    That’s my opinion anyway.

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    • And sadly Joe, if the proposal for all private industry workers to be covered under Comcare come to fruition then it will be even worse. No access to compensation under common law is a key component, amongst other really vile proposals. The NSW Liberal party took an already broken system and smashed it to pieces, now their Federal counterparts want to do even worse. In the near future, permanently injured workers will receive pitiful payouts, not even worth going to court to fight.

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