An Introduction to Work Injury Damages

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1 An Introduction to Work Injury Damages 2010 Edition Author: Christopher Michael Accredited Specialist Blue: Black: Pantone 540C

2 Edwards Michael Lawyers An Introduction to Work Injury Damages 2010 Edition 2

3 Black: Contents What is a claim for Work Injury Damages? 4 What is the difference between Workers Compensation and Work Injury Damages? 4 What is the effect of payment of Work Injury Damages? 4 When can a claim for Work Injury Damages be made? 5 How is a claim for Work Injury Damages made? 6 How are Work Injury Damages Calculated? 8 Past-economic loss: 8 Fox v Wood: 8 Future economic loss: 8 Loss of Superannuation Benefits 8 Interest 8 Exceptions to restrictions on Damages 9 Ways to reduce liability 9 Contributory Negligence 9 Contribution from other parties 9 Dual Insurance 9 Costs Issues 10 Exceptions - Schedule 7 costs do not apply to costs for: 10 3

4 Edwards Michael Lawyers An Introduction to Work Injury Damages 2010 Edition What is a claim for Work Injury Damages? A claim for Work Injury Damages is a Common Law claim which is subject to statutory restrictions on the type of damages that may be awarded. In order to be entitled to Work Injury Damages, a worker must establish: 2 Negligence (i.e. fault on the part of the employer); and That the 15% Whole Person Impairment threshold has been satisfied 3. What is the difference between Workers Compensation and Work Injury Damages? Workers Compensation is based on a statutory scheme for payment of weekly benefits, medical expenses etc for as long as the effects of injury persist. Weekly compensation is based upon gross (before tax) weekly rates. Work Injury Damages are a one off lump sum to compensate a worker for past and future economic losses resulting from an injury. These losses are based on net (after tax) weekly rates. What is the effect of payment of Work Injury Damages? Payment of Work Injury Damages brings to an end for all time a worker s entitlement to all workers compensation benefits for the injuries which are the subject of the claim. A worker ceases to be entitled to any further compensation and weekly compensation already paid is to be deducted from damages 4. It is important to note, however, that liability only ceases when a worker actually receives payment of Work Injury Damages, not on the date of settlement 5. 1 Section 151F WCA 2 Section 151E WCA 3 Section 151H WCA 4 Section 151A(1) WCA 5 Watson v Newcastle City Council (1962) 107 CLR 426 4

5 Black: When can a claim for Work Injury Damages be made? A claim for Work Injury Damages cannot be made unless a claim for lump sum compensation is made before or at the same time 6. Court proceedings cannot be commenced until six months after notice of injury was given to the employer 7, unless the employer wholly denies liability for the claim or a worker is dissatisfied with the extent of a partial admission of liability. Court proceedings must be commenced within three years of the date of injury 8, unless leave is granted by the Court. Whether leave is granted to commence proceedings out of time will usually depend on a satisfactory explanation being given for the delay and on whether or to what extent the Defendant is prejudiced by the delay 9. Further, the Act provides for suspensions of time for various periods whilst claims are being determined, medical disputes have been referred for assessment or appeal, and while a Pre-Filing Statement remains current Section 280A WIM 7 Section 151C(1) WCA 8 Section 151D WCA 9 Itex Graphic Pty Limited v Elliott [2002] NSW CA 10 Section 151DA(1) WCA 5

6 Edwards Michael Lawyers An Introduction to Work Injury Damages 2010 Edition How is a claim for Work Injury Damages made? Action by Worker Action by Insurer Step 1: Section 281/282 notice of intention to claim Work Injury Damages These notices are to provide particulars of: The injury received by the worker; All impairments arising from the injury; Any previous injury or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due; Details of economic losses being claimed and details of alleged negligence; Information as to whether or not the degree of permanent impairment resulting from the injury will change. Key words/phrases to identify these notices: negligence, particulars of negligence, breach of statutory duty, economic loss, loss of superannuation benefits, Fox v Wood The insurer has two months to determine the claim, by either accepting liability and making a reasonable offer of settlement, or disputing liability 11. Failure to determine means that a Pre-Filing Statement can be served after 2 months. Upon receipt of the Section 281/282 notice, further particulars can be requested within two weeks and time does not then run until particulars have been provided. As with permanent impairment claims, this also allows an insurer to arrange a medical examination within two weeks and time does not run until attendance at that examination. Upon receipt of these notices, insurers should: Check that full particulars have been provided and, if not, request particulars within two weeks; Arrange any necessary medical examination within two weeks; If it appears that there are reasonable prospects of the 15% WPI threshold being satisfied, arrange a factual investigation in relation to allegations of negligence and economic loss. Issue a Dispute Notice within the 2 month timeframe. Step 2: Pre-Filing Statement A Pre-Filing cannot be served until two months after the notice of the claim has been submitted, or two months after all particulars of the claim have been provided (including attendance for medical examination), provided such particulars (or details of medical examination) were requested within two weeks of the claim being submitted 12. Exceptions apply if liability is wholly disputed or one month has elapsed from an offer of settlement 13. A Pre-Filing Statement cannot be served unless there has been a Medical Assessment Certificate or agreement that the 15% WPI threshold has been satisfied 14. Upon receipt of a Pre-Filing Statement, an insurer should immediately check: Whether there has been a MAC or agreement that the 15% WPI threshold has been satisfied. That all particulars of the claim have been provided. That two months has elapsed from the Section 281/282 notice of intention to claim Work Injury Damages, or two months since all particulars (including attendance at medical examination) were provided. If there are any discrepancies in relation to the above, the insurer must within 7 days notify the worker in writing that the Pre-Filing Statement is defective, giving details of any alleged defects 15. If such notice is not provided, the insurer loses the right to assert that a Pre- Filing Statement is defective (by reason of incompleteness or otherwise) 16. Subject to the above, an insurer has 42 days to serve a Pre-Filing Defence. The Pre-Filing Defence must attach and identify all evidence relied upon, otherwise such evidence is inadmissible without leave of the Court 17. If a Pre-Filing Defence is not served within 42 days, the insurer is unable to dispute liability Section 281(2) WIM 12 Section 315(2) WIM 13 Section 315(2)(a),(b) 14 Section 313 WIM 15 Section 317(1) WIM 16 Section 317(1) WIM 17 Section 318(1)(d) WIM 18 Section 318(1)(c) WIM 6

7 Black: Action by Worker Step 3: Application for Mediation An Application for Mediation can be filed 28 days after the Pre-Filing Statement has been served 19. If there is no response to the Pre-Filing Statement, Mediation is not required and Court proceedings can be commenced 42 days after the Pre-Filing Statement is served 20. Step 4: Court Proceedings Court proceedings can be commenced 42 days after service of the Pre-Filing Statement or at any time after a Certificate of Mediation Outcome has been issued Action by Insurer A response to an Application for Mediation is required within 21 days of registration of the Application for Mediation 21. An insurer cannot decline to participate in Mediation unless liability for the claim is wholly disputed 22. A Defence must be filed within 28 days of service of a Statement of Claim 19 Section 318A(1) WIM 20 Section 318A(2) WIM 21 Rule 17.10(1) 22 Section 318A(3) WIM 7

8 Edwards Michael Lawyers An Introduction to Work Injury Damages 2010 Edition How are Work Injury Damages Calculated? Damages are limited to: Damages for past economic loss due to loss of earnings; and Damages for future economic loss due to the deprivation or impairment of earning capacity 23. Damages usually fall within the following categories: Past-economic loss: This is calculated on a net (after tax) basis, by reference to the difference between probable earnings and an assessment of any residual capacity to earn, with credit for weekly compensation paid. Fox v Wood: Because damages are assessed on a net (after tax) basis, allowance is made for income tax deductions from weekly compensation losses in one lump sum rather than on a weekly basis into the future. That sum is then discounted by 15% to allow for vicissitudes, such as the possibility earning capacity might otherwise be diminished or curtailed by illness, other accident etc. Loss of Superannuation Benefits Because economic losses are based on net rates, separate allowance is made for loss of both past and future loss of superannuation benefits. The current rate is 11%. Interest Interest is only payable where there has been some unreasonable conduct on the part of a insurer in terms of an offer of settlement, or failure to make an offer of settlement 26. Exceptions to restrictions on Damages Future economic loss: A worker is entitled to future economic loss until 65 years of age 24 Future economic loss is calculated by reference to the difference between probable net (after tax) earnings and an assessment of any residual capacity to earn (subject to the Section 35 statutory ceiling 25 ). This figure is then capitalised at 5% on actuarial tables, to account for the fact that the worker will be receiving his entire future economic Claims for damages under the Compensation to Relatives Act 1897 (i.e. death claims) 27. Damages for injuries arising out of the use or operation of a motor vehicle Section 151G WCA 24 Section 151IA WCA 25 Section 151I WCA 26 Section 151M WCA 8

9 Black: Ways to reduce liability Contributory Negligence If a worker s own fault has caused or contributed to the injury, then damages are to be reduced by the proportion of the workers fault 29. For example, a Court may find that an employer and a worker were equally at fault for the injury, in which case damages would be reduced by 50%. However, damages may not be reduced on this basis below an amount that the Court estimates would have been payable by way of a commutation of weekly payments 30. It is important that the identity of the policyholder for each insurance policy is identical. The most common example of dual (or double) insurance is where injuries were caused by the use or the operation of a motor vehicle owned by the insured. In such a situation, the insured would be able to claim indemnity under either the workers compensation policy or the CTP policy, so dual insurance applies. This means that each insurer is liable for 50% of the worker s damages and 50% of the worker s legal costs. Contribution from other parties If the negligence of a third party caused or contributed to the Plaintiff s injuries, then a claim for indemnity or contribution can be made to reduce the extent of the employer s liability 31. Dual Insurance If the insured has another policy, in addition to its workers compensation policy, that would also respond to the claim made by the worker, then there is a basis to claim dual (or double) insurance. 27 Section 151G(2) WCA 28 Section 151E(2) WCA 29 Section 151N WCA 30 Section 151N(2) WCA 31 Section 5 Law Reform (Miscellaneous) Provisions Act

10 Edwards Michael Lawyers An Introduction to Work Injury Damages 2010 Edition Costs Issues Costs for Work Injury Damages claims are payable pursuant to Schedule 7 of the Workers Compensation Regulation Only party/party costs may be awarded in Work Injury Damages claims. There is no power to award indemnity costs 35. If the claim is the subject of a Mediation, the Plaintiff is entitled to payment of costs only in the event that the Plaintiff obtains an order or judgment no less favourable then the Plaintiff s final offer of settlement 32. The Plaintiff may make a subsequent offer within a period of one month from the conclusion of the Mediation. If there is no Mediation, this offer is deemed to be the amount of damages specified in the Pre-Filing Statement 33. Where there is no Mediation, the Plaintiff may make an offer within one month following the issue of a Certificate which is treated in the same way as a final offer at Mediation (i.e. the Plaintiff must obtain an order or judgment no less favourable in order to be entitled to costs). If the Plaintiff obtains an order or judgment less favourable than the terms of the insurer s final offer at Mediation (if there is no Mediation this is deemed to be $ ), the Plaintiff is required to pay the insurer s costs. Exceptions - Schedule 7 costs do not apply to costs for: Investigators reports; Accident reconstruction reports; Accountants reports; Reports from Health Service Providers; Professional reports relating to treatment or rehabilitation; Fees for Interpreter or Translation services; Fees imposed by a Court; Travel costs and expenses of Plaintiff for attendance at medical examinations or attendance Court; 36 Witness expenses at Court. Costs for proceedings that are ancillary to proceedings on a claim for Work Injury Damages (e.g. appeals, cross claims) 37 ; and Costs in proceedings arising out of the use or operation of a motor vehicle Regulation Regulation 92(e) 34 Regulation 92(d) 35 Chubs Constructions Pty Limited v Chamma [2009] NSW CA Regulation Regulation Section 151E(2) WCA 10

11 Black: 11

12 Edwards Michael Lawyers Level 11, 75 Elizabeth Street, Sydney 2000 DX 1209 Sydney Phone: (02) Fax: 02) Blue: Black: Pantone 540C

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