QLS Essentials 24 Oct 2013, Adam Tayler, Special Counsel, Turner Freeman Lawyers
There are two types of workplace injury lawyers, those who specialise in it and those who don’t. The distinction is significant. The area of workplace injury law is one which is ever evolving and challenging. To be a good workplace injury lawyer you need to have a good background in all work related laws, not just those that govern injury claims. An understanding of industrial laws, discrimination laws and workplace health and safety obligations is essential to fully understand whether your client may have a viable work related injury claim.
If your boss tells you to go and interview a new client with a work related injury there are some particular issues you need to know about which may make a difference as to whether a viable claim can be pursued or not. Given the more and more flexible nature of employment these days there is also a significant chance that in the majority of cases the client will have a cause of action against more than one entity which may engage other injury claim schemes.
WorkCover is the default insurer
In Queensland all claims for work related injuries are regulated by the Workers Compensation and Rehabilitation Act 2003. The scheme allows for self insurers and there are 32 self insurers in Queensland being mostly large employers. Workcover Queensland, a Government Owned Corporation, is the default insurer for all other employers. Insurance is compulsory. Where an employer has not taken out insurance their workers will still be entitled to compensation under the Act.
Broadly speaking there are two aspects to the scheme. Firstly there is a no fault entitlement to weekly benefits in lieu of wages, medical treatment, rehabilitation, other injury related expenses, lump sum compensation for permanent impairment and additional lump sum compensation for serious injuries. For fatal claims there is an entitlement to lump sum compensation for dependants, funeral costs and other related expenses. Secondly the Act regulates common law claims for damages where an employer is at fault for causing the injury and can be shown to have either breached the contract of employment causing damage or been negligent. There is no longer any right to a statutory cause of action formerly available under the Workplace Health and Safety Act 1995. Note however other potential statutory causes of action pursuant to for example the Coal Mining Safety and Health Act 1999. Some specific workplaces are also governed by their own legislation, for example other mining operations like coal seam gas, police, corrective services, emergency services, etc.
TIP: Find out if there is other legislation which regulates the actions of employers and employees in this workplace?
Statutory claims must be initiated within 6 months of consulting a doctor about the injury. Extensions of time to lodge claims are available in special circumstances. A claim can be lodged by phone, online, through the doctor or by completion and submission of an application form. There are exclusions for self inflicted injuries or injuries caused by misconduct. Purely psychological injuries must not be caused by reasonable management action taken in a reasonable way in order to remain compensable under the Act.
Claims must be assessed and decided within 20 business days. The insurer can request more time but must seek the worker’s consent first and advise the reasons why.
The first step after meeting with a new client who has a work related injury is to obtain a copy of the insurer’s claims file. Workcover Queensland operate in a reduced paper environment and will provide electronic copies of documents. The electronic copies can be unwieldy and difficult to follow but it is essential that they are meticulously analysed to ensure a proper understanding of your client’s circumstances and the progress of their statutory claim. If the file does not come with a progress communications report, a payment history and a medical certificate history you must also request those things.
Typically the file will contain a wealth of information which the client may not be aware of. There will be medical reports from treating doctors, IMEs and internal medical officers engaged by Workcover. The communications report will contain notes of conversations between Workcover representatives and the worker, the employer, third party providers, witnesses and doctors to name a few. These conversations may identify potential witnesses or could even contain admissions or evidence of other matters relevant to the claim, for example the availability or location of documents.
TIP: Analyse the workers compensation claim file carefully.
How to know which scheme applies
In some cases it will be obvious that there is a second potential tortfeasor and possibly another type of claim that can be pursued. The obvious example in the workplace context is where a worker is working under a labour hire arrangement.
As I mentioned before workplaces in the modern era are increasingly flexible. Casualisation of the workforce has led to an explosion of labour hire and temporary employment agencies. Labour hire arrangements are where a worker is engaged by an employment agency to work in another workplace. For example, Drake Industrial is a labour hire agency who have a book full of skilled employees who they loan out to other companies for their use.
In this scenario Drake Industrial is the true employer and the other company is a host employer. Essentially both of these entities have the obligations of an employer but only the true employer is covered by the workers compensation scheme. Claims against the host employer are essentially public liability claims and are governed by the Personal Injuries Proceedings Act 2002. Both of the pre proceedings processes of these Acts will need to be complied with in relation to the respective respondents. Note that pursuant to s5 of the Civil Liability Act 2003, work related injuries are excluded from the operation of the provisions of that Act.
Identifying the employment situation is therefore crucial. You must ask for and analyse payslips, contracts of employment, PAYG Summaries, tax returns, training documents, etc. to work out exactly what the true situation is.
Whether someone is an employee or an independent contractor can also determine which scheme applies. What may look on its face to be a workers’ compensation matter may turn out not to be if the person is in fact engaged as a contractor. In those circumstances the claim will be governed by PIPA.
A further example where a third party might be involved is where the injuries may have been caused by another worker who is not an employee of the same entity or is themselves and independent contractor.
Another example where a third party other than the true employer might be involved is where there has been a failure of some plant or equipment which is the responsibility of some other entity. There is significant debate about the pros and cons of joining other entities to a claim and the complications that compliance with two regimes can bring. The important point though is that these entities need to be identified and considered when advising the client on the best course of action. If you can identify accurately all the relevant entities involved then your supervising partner can more easily make the call as to which entity or entities to sue and which scheme applies.
There are of course other considerations such as restrictions on damages that differ scheme to scheme. With the recent amendments to the workers compensation scheme those with a 5% impairment may find they are excluded from a damages claim against the true employer but able to proceed against the host employer.
Preparing for a Common Law Claims
Preparation commences from the first interview with the client. A claim needs to be prepared from the beginning as if it is going to trial. Doing this doesn’t mean you are going to run more trials. To the contrary if you prepare a claim for trial it is more likely to settle because the evidence will be there to convince an insurer to resolve the matter.
The client’s statement is the most important document you will have on file and needs to be comprehensive and accurate. To achieve this you need time. The first interview may not be enough to finalise a proper statement depending on the complexity of the matter.
Systems of work and the mechanism of injury need to be accurately described blow by blow. How often have you seen a statement that says “I lifted the box and felt pain.” What that statement should really be is after describing the system of work in detail something like:
I had my feet facing towards the box. The box was at floor level on a pallet. I had to lean in approximately 500mm to reach the box because of the positioning of the pallet. I bent at the waist and twisted to my left to avoid the pole in front of me and grasped the box with two hands on the left and right side of the box respectively. The box was 700mm2 in shape and was made of cardboard with no handles. As I lifted the box I felt a sudden sharp pain in my lower back.
Preparing a Notice of Claim
There are three crucial aspects to a notice of claim; the description of the event; the particulars of why the employer is liable and the offer.
The description of the event causing an injury in your notice of claim for damages needs to be comprehensive. The more detail you can provide the easier it will be to convince an insurer of the merits of the claim.
If some context is required to understand why a particular event was caused by the employer’s negligence then that context should be provided. For example if there were complaints prior about a particular system of work then those complaints should be detailed with dates, names, to who they were made, etc.
Particulars of the scope of the duty and standard of care required and the nature of the breach are also required. Treat the answer to how the employer is liable as you would a pleading but perhaps in a less wordy way. The same concepts apply though. Why is a duty of care owed in these circumstances? What is the extent of the duty of care? How has the duty been breached. Has that breach caused the injury?
From a damages point of view an offer ought to be realistic and based on the available evidence. Depending on the practice of your firm or the nature of the case it may be that there is limited medical evidence available at the time of preparing a notice of claim.
Preparing for a Complusory Conference
Preparation for the conference of course commences at the time the claim starts. All relevant evidence should be available and have been disclosed in accordance with the Act. A review of disclosure should occur at this point.
Workcover Queensland have a stated policy of making their best offer at this stage of the proceedings. The conference is accordingly extremely important in the overall context of the claim.
Who are you going to take to the conference? Who will be there from the other side? Consider whether taking a key witness may add value at the conference.
What are the real matters in issue. Where do the factual versions diverge and what evidence do we have which proves our case or disproves their theory.
Preparation really should mirror the preparation you would do for a trial. If written submissions have not been prepared beforehand consider exchanging them with the other side before the conference.
Consider whether any requests for information or further disclosure should be forthcoming. Beware the insurer that discloses what is in their possession. What about those documents in the possession of the employer?
Claims for out of pockets must be supported by evidence and be documented. Schedules submitted with the notice of claim should be updated.
If you are relying on cases to support your claims have them available at the conference to give to the other side if you have not provided submission beforehand.
Most importantly allow time to prepare. You will need to re-read the file prior to the conference. Doing it the day before is too late. Allow yourself time to pick up issues that may not have been considered before so you have time to take steps to gather more evidence if necessary.