The Role of Lawyers in Workers Compensation. [Insert Title] Disputes. & Lauren Haygarth [Insert date as: Day, # Month Year]

Transcription

1 The Role of Lawyers in Workers Compensation [Insert Title] Disputes Presented by by [Insert Matt Speaker] Thickett & Lauren Haygarth [Insert date as: Day, # Month Year]

2 Introduction HWL Ebsworth Lawyers WorkCover dispute resolution process What is WorkCover? How did we get here? How can we get the best outcome? How can we maximise the effectiveness of investigations? Questions

3 What is WorkCover WA? Created by the Workers Compensation and Injury Management Act 1981 (WA) Sits under the Minister of Commerce, and administered by the WorkCover WA Board Not just a dispute resolution service, incorporating 4 divisions (including a regulatory limb) The Conciliation and Arbitration Service (CAS) Two limbs: Conciliation Service Conciliation involves parties in dispute coming to their own agreement The primary role of the Conciliation Service is to encourage the resolution of a dispute by agreement between the parties, with the assistance of an independent Conciliation Officer Created by the 2011 amendments to the Act, and governed by the Workers Compensation and Injury Management Conciliation Rules 2011 Director: Harley White Arbitration Service Arbitration involves the formal determination determination is legally binding on the parties of a dispute by an Arbitrator, which Arbitration involved the hearing of evidence by a legally qualified Arbitrator (from a panel of permanent and sessional Arbitrators) Governed by the Workers Compensation and Injury Management Arbitration Rules 2011 Registrar: Nilan Ekanayake (at 2 June 2015)

4 How did we get here? Basis for dispute Production of documents (s180) Determination of liability (s58) Review of liability (s60) Employer s notice of intention (s61) Review of weekly payment entitlements (s62) Order for participation in rehabilitation (s155) Order for total liability (s217) Determination of rate of pay (Sch1, Cl11) Order for payment of statutory entitlements (Sch 1, Cl17) Conferral Prior to accepting an Application for Conciliation for filing, the Director should be satisfied that the Applicant has attempted to resolve the dispute by making a genuine attempt at conferral with the Respondent.

5 The Process Application filed and Conciliation Officer appointed Notification that an Application has been filed Service of the Application on the Respondent by WorkCover CAS Conciliation Conference date listed Respondent to file any response or supportive documents 7 days prior to Conciliation Conference date Conciliation Conference Certificate of Outcome 28 days to file Arbitration proceedings Directions Hearings (Registrar or Arbitrator Frania Sharp) Arbitration Hearing (Panel or Sessional Arbitrator) Decision 28 days to Appeal on a question of law to the District Court

6 Defending Proceedings When a matter is referred to us, we take a broad approach to it. As broadly as possible, we look at: Getting a strategy Obtaining good early evidence Mitigating wherever possible The Reply Timing Content Benefits

7 Evidence early Early evidence: Tells you if your strategy is any good Serves to confirm your risks Might open up avenues of defence that didn t exist previously The more proximate the evidence to an injury, the stronger it generally is

8 Medical evidence Pick the right IME Ask the right questions Don t ask the wrong questions Use GPs to your advantage Unexplained total incapacity Ask about capacity Ask about rehabilitation and barriers to return to work

9 Surveillance Contrary evidence Goes to credibility in cases where the nature of an injury or work capacity might be contested Very rarely useful in claims for psychiatric injury Earlier the better Risk vs reward How to use it In itself, not determinative evidence Strengthened by specialist review

10 Settlement Not necessarily always a legal role Keeping all necessary parties informed (particularly where IR issues are running concurrently to a claim) Simple settlements Redemption Memorandum of Agreement Complex settlements Multiple claims Unusual terms (confidentiality, resignation, non-disparagement) Settlements requiring Deeds, or concurrent Deeds

11 Examples

12 Questions