6.3.5 Originating motion

6.3.5.1 Panel solicitor reviews the OM | 6.3.5.2 OM hearing occurs

The worker can apply to the court by Originating Motion (OM) if a serious injury is denied.

Steps

The two steps in the originating motion phase are:

  • Panel solicitor reviews the OM
  • OM hearing occurs.

6.3.5.1 Panel solicitor reviews the OM

When WorkSafe receives an OM from the worker, they advise the Agent that the OM has been received.

Agent receives OM

If the Agent receives an OM, they must forward it to WorkSafe within 24 hours of receipt.

WorkSafe allocates OM

WorkSafe allocates the OM to a panel solicitor – usually the same legal firm that managed the response to the application.

Panel solicitor manages OM

The panel solicitor manages the OM and the hearing process. The panel solicitor may ask the Agent to forward the worker’s claim file and other relevant documentation.

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Agent supports panel solicitor

The Agent:

  • forwards the claim file to the panel solicitor within five days of the request
  • notifies the employer about the OM
  • acts on all requests from WorkSafe and panel solicitor about OM
  • arranges any medicals, investigations or rehabilitation reports requested
  • updates case estimates drawing on panel solicitor advice
  • liaises with the panel firm in relation to any ongoing claims management, including promptly providing the panel solicitor with any new material obtained by the Agent such as surveillance or medical reports (including treating questionnaires).
Panel solicitor

The panel solicitor may arrange a peer review at any stage before the court hearing or as required by WorkSafe. The panel solicitor will also:

  • conduct investigations
  • prepare affidavits
  • inform WorkSafe of scheme sensitive issues
  • keep the employer informed of key dates and developments.

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6.3.5.2 OM hearing occurs

WorkSafe may peer review OMs at any time as required.

In all cases, WorkSafe will provide instructions in respect of the OM proceedings as to whether to grant SI or maintain denial, based on the panel solicitor’s recommendations.

Who Action
Panel solicitor If the OM is to be conceded, the panel solicitor will prepare the consent orders or prepare the SI certificate.
Worker If the SI certificate is granted, the worker begins the pre-litigation conference.
Panel solicitor manages hearing and advises of judgment

The panel solicitor will manage all matters leading up to the hearing. They will:

  • arrange peer reviews, according to WorkSafe's requirements
  • discuss with WorkSafe all issues concerning subpoenas, notices to produce, witnesses, engagement of counsel and trial preparation.
Who Action
Panel solicitor

During the hearing the panel solicitor will:

  • be present at court
  • organise the witnesses
  • contact WorkSafe for instructions about any proposed SI grant
  • keep WorkSafe, the Agent and the employer informed
  • prepare and make any relevant cost submissions.

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Judgment

After a judgment has been made at the hearing, WorkSafe will:

  • consider appeal grounds raised by the panel solicitor
  • provide instructions to the panel solicitor about any appeal.
Who Action
Panel solicitor

After the judgment, the panel solicitor will:

  • verbally advise WorkSafe immediately after judgment
  • promptly advise the employer of the outcome
  • provide written advice to WorkSafe and the Agent within 48 hours of judgment
  • send WorkSafe a transcript of the judgment as soon as it is received
  • review the judgment for possible appeal grounds and advise WorkSafe.
Worker

If SI is granted, the worker begins the pre-litigation conference.

If serious injury is denied, the worker may appeal.
Agent

If SI is granted and the worker is still in receipt of weekly payments then the Agent should consider making them a direct payee.

See: Weekly payments
Appeal

Either the worker or WorkSafe can appeal the judgment.

If there is to be an appeal, WorkSafe will include the matter in its Strategically Significant File list.

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