6.3.6 Pre-litigation damages conference
6.3.6.1 Pre-litigation begins | 6.3.6.2 Statutory offer | 6.3.6.3 Counter offer
The panel solicitor manages the pre-litigation damages conference.
Steps
The steps in the pre-litigation phase:
- pre-litigation begins
- compulsory conference takes place
- Panel solicitor WorkSafe’s External Investigation Management Unit makes statutory offer
- worker’s solicitor makes a statutory counter offer.
6.3.6.1 Pre-litigation begins
When SI is granted to the worker, the panel solicitor:
- organises and manages a pre-litigation conference, to happen no later than 21 days after the response date
- makes a recommendation and seeks instructions from WorkSafe about a possible settlement A lump sum payment that replaces an injured worker's right to ongoing weekly compensation. offer. This should happen no later than 10 days after the response date
- aims to negotiate the damages with the worker.
Agent and WorkSafe preparation
In preparation for the conference:
- the Agent must act on any requests by the panel solicitor for information
- WorkSafe reviews the panel solicitor’s recommendation.
| If WorkSafe: | WorkSafe will: |
|---|---|
| agrees with settlement offer recommendation | inform the panel solicitor that they agree with the recommendation. |
| disagrees with settlement offer recommendation | contact the panel solicitor to discuss the matter following which WorkSafe must provide settlement instructions. |
Panel solicitor conducts conference
The panel solicitor begins the pre-litigation conference with the worker within 21 days of the response date.
If the matter is settled at conference, the panel solicitor must:
- advise WorkSafe
- advise the Agent and employer of the settlement within 24 hours of settlement
- advise the Agent within 24 hours of settlement if payments are to stop
- provide a signed release to the Agent within 24 hours.
Matter settled
If the matter is settled, the Agent must:
- pay the settlement monies to the worker within seven days of being advised; or as per the relevant clause in the signed release/terms of settlement/court order (generally 28 days)
- pay the legal costs within 30 days of advice
- stop the worker’s payments, if necessary.
6.3.6.2 Statutory offer
If the worker’s application for damages remains unresolved during the pre-litigation conference, the panel solicitor is responsible for:
- making a statutory offer to the worker
- receiving and considering a statutory counter offer from the worker.
The panel solicitor:
- may request a peer review in accordance with WorkSafe's requirements to consider the statutory offer
- recommend to WorkSafe the amount of the statutory offer
- advises the employer of the proposed statutory offer.
WorkSafe provide instructions
WorkSafe is to provide instructions to the panel solicitor on the amount of the statutory offer.
Panel solicitor
If the worker accepts the statutory offer, the panel solicitor must:
- advise WorkSafe
- advise the Agent and employer of the settlement terms within 24 hours of settlement
- advise the Agent within 24 hours of settlement if payments are to stop
- provide a signed release to the Agent within 24 hours.
Worker accepts statutory offer
If the worker accepts the statutory offer, the Agent must:
- pay the settlement monies to the worker within seven days of being advised; or as per the relevant clause in the signed release/terms of settlement/court order (generally 28 days)
- pay the legal costs within 30 days of advice
- stop the worker’s payments, if necessary.
6.3.6.3 Counter offer
The worker may reject the statutory offer and make a statutory counter offer.
Panel solicitor
The panel solicitor:
- advises WorkSafe of the details of the worker’s statutory counter offer
- may request a peer review with WorkSafe in accordance with its requirements
- recommends to WorkSafe either acceptance or rejection of the statutory counter offer
If WorkSafe accepts the counter statutory offer, the panel solicitor must:
- advise the Agent and employer of the settlement terms within 24 hours of settlement
- advise the Agent within 24 hours of settlement if payments are to stop
- provide a signed release to the Agent within 24 hours.
Agent makes payments
If WorkSafe accepts the statutory counter offer, the Agent must:
- pay the settlement monies to the worker within seven days of being advised; or as per the relevant clause in the signed release/terms of settlement/court order (generally 28 days)
- pay the legal costs within 30 days of advice
- stop the worker’s payments, if necessary.
Worker can issue writ
If both the statutory offer and the statutory counter offer are not accepted and the claim for damages remains unresolved, the worker can issue a damages writ. The damages writ must be served on WorkSafe and the employer.
Forward writ to WorkSafe
If the Agent receives a damages writ, they must forward it to WorkSafe within 48 hours.