6.3.3 Worker makes a common law application
If the worker believes they have a right to claim damages for their injury, they lodge a Common Law Application with WorkSafe:
- using the prescribed form
- attaching all information (medical and otherwise) that the worker will want to rely on at any proceedings, and as required by the legislation and by Ministerial Directions.
- attaching a medical authority in a form approved by WorkSafe (also called a Form D).
Forward application and claim file
WorkSafe forwards the application to the panel solicitor within 48 hours of receipt.
WorkSafe asks the Agent to send the worker’s claim file to the panel solicitor.
The Agent sends the claim file (including any separate IB Impairment Benefits file) and other relevant documentation to the panel solicitor within five days of the request.
The Agent must also ensure the primary claim for the application is open. This enables the application to be linked by WorkSafe.
If the Agent is aware of any information relevant to the worker and which may be relevant to the panel solicitor’s management of the common law application, the Agent must give that information to the panel solicitor.
Panel solicitor reviews application for material defect
The panel solicitor reviews the application within 21 days of receipt ensuring there is no material defect Material defects, omissions or irregularities can affect the decision to accept or reject a claim.. The panel solicitor advises WorkSafe if a material defect is discovered.
Following instructions from WorkSafe, the panel solicitor will inform the worker that their application has a material defect and has been suspended (if appropriate).
Agent advises employer
The Agent must advise the worker’s employer that an application has been received and the name of the appointed panel solicitor. Where appropriate, the Agent should advise the employer of its obligation to cooperate with the panel solicitor and explain the nature of a common law application.
Common law application is reviewed
The panel solicitor carries out investigations:
- check if the application involves a transport accident Transport accident means a transport accident within the meaning of section 3(1) of the Transport Accident Act 1986
- identify other involved parties.
Agent support
The Agent must organise rehabilitation reports if requested by the panel solicitor.
The Agent must update case estimates, based on the panel solicitor’s advice.
The Agent will co-operate with the panel solicitor in keeping the employer informed of its obligations.
Peer review
WorkSafe may peer review any applications as required. In all cases, WorkSafe will provide instructions to the panel solicitor whether to grant or deny serious injury.
Panel solicitor
Within 120 days of receipt of the application, the panel solicitor prepares:
- a response to the worker’s application
- any necessary affidavit material in support of the response.
The panel solicitor forwards this response to the worker within 118 days of the application being received.
The panel solicitor also prepares a letter of advice to WorkSafe, and provides a copy of that advice to the Agent.
Worker
If serious injury granted, the worker begins the pre-litigation damages process.
See: Pre-litigation damages conference
If serious injury is denied, the worker can apply to the court by Originating Motion (OM Originating Motion).