Under the workers compensation legislation, there are currently two settlement pathways. The first pathway is typically used in plain vanilla workers compensation claims. These are claims were liability is accepted, there are minimal disputes, and the claim typically resolves after one to 2 years.
The common law pathway under section 92 (f) of the legislation is normally used in more complicated cases. Some of the common scenarios where this method of settlement is used involve the following:
1. There is a dispute about liability in a workers compensation claim, the parties cannot agree in respect of liability, but the parties agree to resolve the dispute for a sum of money.
2. This method of settlement is almost the exclusive method of settlement in psychological claims. Psychological claims are almost routinely denied. Most of them then settle at a later time for a sum of money using the common law pathway.
3. There is more than one workers compensation claim, liability for one workers compensation claim is admitted, and the liability for the second workers compensation claim is denied. The parties settle for a sum of money.
4. Scenarios where liability is accepted, but extensions to the prescribed amount for medical expenses or weekly payments of compensation arise, but cannot be agreed. The parties settle for a sum of money.
In the WorkCover WA report into the workers compensation system, WorkCover is identified that somewhat unsurprisingly there has been a general trend towards use of the common law pathway to settle difficult workers compensation claims.
The Discussion Paper proposed amendments to ensure WorkCover WA can accurately monitor settlement activity in the scheme. The proposals involved introducing a statutory settlement regime to:
• preserve the intent of the current pathway with claims able to be settled 6 months after the claim is accepted or determined; and –
• enable certain claims to settle before the 6 month time limit if a ‘special circumstance’ is involved;
• restricting commons law settlements to genuine common law matters only.
In our view, there is no doubt that there are weaknesses with the current common law settlement scheme. It requires an injured worker to file a writ of summons with the District Court of Western Australia which effectively does not make much sense for various jurisdictional reasons. The usual practice is that the injured worker, and the employer then sign a deed effectively saying that the injured worker agrees to give up their common law rights, and workers compensation rights for a sum of money. After the deed is not disapproved by the director, then the parties file a memorandum of consent order with the District Court stating that the matter is dismissed with no order as to costs.
Most workers compensation lawyers, want to see a workers compensation system whereby there is a relatively simple system by which workers can settle their workers compensation claim. At a recent CPD seminar we attended this was confirmed by most of the vocal lawyers in attendance. It is easy to see how this could bring the legal profession into conflict with WorkCover WA, as the regulatory authority, and the Government if the proposal goes ahead. Workers are typically somewhat traumatised by the workers compensation process and while the system needs to be regulated, workers need to have an easy to understand way to leave the system and settle their claim.
Foyle Legal practices in the area of workers compensation law and assists injured workers on a no win no fee basis in personal injury claims.
For more information, Please contact us.
6/2 Carson Road
Malaga, Perth, WA 6090
Phone: 0408 727 343
Email: [email protected]