6.2.8.3 Assess table of maims claim
Upon receipt of claim
A letter is to be sent to the worker / the worker’s representative within two working days of the Agent receiving the maims claim acknowledging receipt of the claim and advising the claim has been forwarded to WorkSafe for allocation to a Legal Panel firm WorkSafe approved legal representatives who will be in contact shortly.
The Agent must forward the maims claim and the attached documentation to WorkSafe's Maims Coordinator (within 24 hours) for registration and allocation to a the Legal Panel firm who will administer the claim in line with the legislation and Ministerial Directions and be in contact with the Agent. The Agent is requested to forward claim files and associated documentation to the allocated Legal Panel firm immediately.
At the same time the Agent is to write to the employer advising the employer of the Agent’s receipt of the maims claim.
In regard to maims claims made on or after 1 July 2002, it is necessary to check whether any corresponding maims claim/s has been made at the same time. If the claims were not lodged together, the Legal Panel firm will write to the worker/worker’s representative requesting reasons why the maims claim has been made separately. The Agent must then evaluate any ‘special excuse’ subsequently provided by the worker and the Legal Panel firm will provide advice to the Agent on this issue.
The Agent must provide information to the Legal Panel firm as to whether there has been any impairment benefit or common law settlements for the same injuries. the Agent must also provide copies of any earlier maims claims.
The Legal Panel firm will arrange an independent medical examination as appropriate and forward copies of the worker’s medical material to this examiner.
Other Agent responsibilities
The Agent must ensure ACCtion is updated regarding estimates as the maims claim progresses in line with the Legal Panel firm’s advice.
The Agent must action any maims claims management requests by the Legal Panel firms/WorkSafe in a timely manner.
The Agent is responsible for providing instructions to the Legal Panel firm to accept or deny claims or to make offers in line with Legal Panel firm recommendations.
The Agent must ensure prompt payment of appropriate benefits after settlement A lump sum payment that replaces an injured worker's right to ongoing weekly compensation. and legal costs (where appropriate) and within the specified time frames as specified elsewhere in the Claims Manual.
Within 90 days of receiving claim
The Agent must decide to accept or reject liability for the claim taking into account the Legal Panel recommendations. The Legal Panel firm will advise the worker of this decision.
The Legal Panel firm is responsible for arranging a conference within 90 days of the receipt date.
If the conference is not concluded within 90 days of the receipt date, the Legal Panel firm may, if reasonable to do so, extend the time frame to conclude the conference.
The Legal Panel firm will provide the worker with copies of all medical reports WorkSafe intends to rely upon in proceedings about the claim.
If WorkSafe does not provide these medical reports this evidence cannot be relied upon.
During this 90 day period a conference must occur between the worker/worker’s representative and the Legal Panel firm and an offer made for maims and pain and suffering compensation.
Offers conferences
The Legal Panel firm must obtain appropriate authority or instructions from the Agent to enable it to make an offer in the course of the conference.
The worker or worker’s legal practitioner Legal practitioner means an Australian legal practitioner within the meaning of the Legal Profession Act 2004 must be readily available to accept or provide a counter-offer to all offers made by the Legal Panel firm.
All offers should be followed up by the Legal Panel firm with the worker/worker representative both by telephone and in writing within 10 working days.
A conference is not concluded until the worker either accepts an offer made by the Legal Panel firm or makes a counter-offer in response to each offer made by the Legal Panel firm.
At the completion of the conference a “Form A” notice is to be completed by the parties and accurately record:
- all medical reports and the substance of such reports served in line with Directions 5 and 8 of the Ministerial Directions
- all offers and counter-offers made at or during the conference and
- any settlement or compromise reached in relation to the maims claim.
Conciliation
The worker has 60 days from the date of the decision to accept or reject the maims claim to refer the matter for conciliation.
The Agent must forward the request for conciliation directly to the Legal Panel firm which handled the pre-litigated application within 24 hours of receipt.
The worker must not begin proceedings unless:
- the conference has been concluded and the ‘Form A’ notice completed by both parties
- the matter has been referred to conciliation and the Conciliation Officer has issued a Conciliation Certificate which:
- certifies all reasonable steps have been taken by the worker to settle the dispute and
- identifies all copies of medical reports provided by the worker, Agent and Legal Panel firm and
- identifies:
- any medical reports about the worker from a medical practitioner obtained at the request of the Conciliation Officer
- if any medical question has been referred by the Conciliation Officer for an opinion by a Medical Panel Under the legislation, unless inconsistent with the context or subject-matter — Medical Panel means a Medical Panel constituted under Division 2 of Part 12, specify that opinion
- be served by post on all parties to the dispute.
Statutory offer
Within 14 days of receipt of the Conciliation Certificate, the Legal Panel firm must make a statutory offer in writing in settlement or compromise of the claim. Where a Medical Panel opinion has been obtained, the statutory offer must be consistent with that opinion.
Before making the statutory offer the Legal Panel firm must obtain instructions from WorkSafe and the Agent.
If the Legal Panel firm fails to make a statutory offer, WorkSafe is ‘deemed’ to have made a statutory offer of nothing. Refer to ‘Court Proceedings’ below as there are legal cost implications.
Counter – statutory offer
Within 21 days of receiving the Legal Panel firm’s statutory offer, the worker must accept the offer or make a counter-statutory offer, which must remain open for 21 days.
If the worker fails to make a counter-statutory offer, the worker is ‘deemed’ to have made a counter-statutory offer of the maximum amount/s for maims and pain and suffering compensation that can be claimed for the relevant injury/injuries.
Court proceedings
A worker may refer a matter to court if it is not resolved at the statutory offer or counter-statutory offer stage.
Cost penalties apply depending on the amount the maims claim is resolved for.
If the resolution amount is 90% of the worker’s counter-statutory offer or greater WorkSafe must pay the worker’s reasonable costs and bear its own costs.
If the resolution amount is equal to or less than WorkSafe’s statutory offer then the worker must pay the Agent’s reasonable costs and bear his or her own costs.
If the resolution amount is greater than WorkSafe’s statutory offer but is less than 90% of the worker’s counter-statutory offer, then each party must bear their own costs.
Injury not stable - interim awards
If a worker seeks compensation for a maims claim for which the subject injury has not stabilised, only the Magistrates’ Court or County Court may make an interim award.
