Workers Compensation
Understand the lawyer's role in the workers compensation system, the types of claims and the benefits that may be payable.
Recent updates can be viewed on Obiter - our News & Updates site.
Precedents provided with this publication include:
- Various letters to client explaining the process at each stage
- Gathering information letters to client/employer/insurer/relevant authorities et cetera
- Letters to doctors
- Claim forms including for journey, recess, industrial deafness, psychological and permanent impairment
- Letters to respondent and insurer making claims
MATTER PLAN
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“ Contents Overview and limitation periods2 ”
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“ Queensland A full commentary on the law and practice of workers compensation. ”
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“ An angiogram is an X-ray test that uses a special dye and camera, fluoroscopy, to take pictures of the blood flow in an artery, such as the aorta, and can be used to look at the arteries or veins in the head, arms, legs, chest, back, or belly. Abduction ”
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“ New South Wales The term ‘subpoena’ is adapted from Latin, but was never a Latin word as such. It has long been an accepted English word. The plural, used in this guide and generally, is therefore ‘subpoenas’, not ‘subpoenae’. ”
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“ This guide deals mainly with subpoenas to produce documents, subpoenas ‘duces tecum’. Much of the law related to subpoenas also applies to subpoenas to give evidence, subpoena ‘ad testificandu’, but there are important, mostly practical, differences. A subpoena can also be both a subpoena to ... ”
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“ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
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“ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, ... ”
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“ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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“ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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“ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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“ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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“ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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“ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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“ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Documents should not be produced until the objection is either resolved or, depending upon the nature of the objection, until ... ”
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“ In criminal cases s 225 Criminal Procedure Act 1986 provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe something, ... ”
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“ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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“ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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“ The leading civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] NSWSC ... ”
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“ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’S Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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“ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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“ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek ... ”
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“ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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“ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R (“Hilton Bombing case”) [1984] HCA 85 and has frequently been claimed, ... ”
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“ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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“ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. Both forms of the privilege apply the dominant purpose test: Esso Australia Resources v ... ”
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“ If the subpoena is pressed over your objection you will need to file a Notice of Motion, or an Application in a case in the federal jurisdiction, asking for an order to set it aside and/or seeking orders that your client be excused from producing any material on an appropriate ground, for example, ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 contains the provisions relating to subpoenas. In criminal cases subpoenas are covered in s 220 - 232 Criminal Procedure Act 1986. ”
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“ A subpoena is a tactical tool in litigation, but should be employed as part of the overall strategy. A subpoena allows you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ... ”
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“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ... ”
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“ Applying to the court You can issue a subpoena by attending at the registry, or filing online. You should provide the court with sufficient copies to allow for you, the recipient, the court and all parties to the litigation to receive one. A subpoena can be issued out of any registry of the ... ”
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“ Who is the right recipient Subpoenas need to be addressed to a person. ”
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“ Scenario: Your client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
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“ Always check the specific rules for service for the court where you are issuing the subpoena: see the links to court websites in Power to Issue a Subpoena above or Further Information below. Generally, subpoenas require personal service, unless they are directed to police or other public ... ”
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“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 and s 224 Criminal Procedure Act 1986. Conduct money ... ”
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“ In criminal proceedings, only a party to the proceedings can seek or obtain a costs order. A third-party recipient of a subpoena is not a party: s 221 Criminal Procedure Act 1986. This effectively means there are no costs sanctions for a criminal defendant issuing numerous and objectionable, ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if you object, unless the objection is for oppression or relates to a claim of privilege, in which case see Hancock v Rinehart (Privilege) [2016] NSWSC 12 and the discussion of legal professional privilege ... ”
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“ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
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“ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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“ When a subpoena is issued the documents are produced to the court, not to you. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court proceedings, will respond to a subpoena ... ”
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“ It is important to know how access orders are dealt with in different courts. In the Supreme Court, for example, unless any objection is made to the court at the time of production, the access order that will apply is the one noted on the subpoena by the issuing party, otherwise general access ... ”
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“ WorkCover Queensland Queensland Industrial Relations Commission ”
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“ Personal Injury (QLD) Motor Vehicle Accident (QLD) ”
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“ In the event of a work-related injury or disease, the workers compensation system in Queensland provides certain limited benefits to workers and their dependants. Section 131(1) of the Act says that the application for compensation is valid and enforceable only if the application is lodged by the ... ”
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“ WorkCover is responsible for the administration of injury management, return to work, workers compensation laws, and management of the workers compensation system for workers, employers and insurers. The Workers’ Compensation Regulator is an independent statutory authority that works to resolve ... ”
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“ When a workplace injury occurs, the injury must be reported to the employer as soon as possible. The employer then has to notify the insurer within eight business days. If the employer fails to notify the insurer, the injured worker, or anyone else, can do so. ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ Section 131(1) of the Act says that the application for compensation is valid and enforceable only if the application is lodged by the complainant within six months after the entitlement to compensation arises. However section 131(4) provides that the insurer must waive subsection (1) for ... ”
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“ An injury to a worker is taken to arise when a worker is injured during a ‘journey’ (a) between the worker’s home and place of employment, (b) between his home or place of employment and any educational institution which he is required or expected by the terms of his employment to attend or (c) ... ”
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“ If a worker receives a personal injury during a temporary absence from his place of employment during an ordinary recess - for instance at lunch time, or morning or afternoon tea - and the event is not due to the worker voluntarily subjecting himself to an abnormal risk of injury during the ... ”
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“ Boilermakers deafness, also known as industrial deafness, is deafness due to an overexposure to high intensity noise levels. This deafness can be a gradual process occurring over many years, and may involve several employers. Claims for injuries such as this are made on the current employer or, ... ”
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“ Section 122 of the Act applies to an injury sustained by a worker who is a miner where the injury is the disease silicosis or anthracosilicosis. Under section 123 compensation is payable if the worker has been continuously resident in the state for five years immediately before the onset of the ... ”
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“ As opposed to legislation in other states, the Workers’ Compensation and Rehabilitation Act 2003 (Qld) does not specifically provide for a psychological injury. However, broadly speaking, those claims can be made under section 32 of the Act, as with any other personal injury. ”
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“ Section 38 of the Act defines permanent impairment as follows: A permanent impairment, from injury, is an impairment that is stable and stationery and not likely to improve with further medical or surgical treatment. ”
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“ An injured worker eligible to make a work injury claim because their employer was negligent for damages or at fault can sue their employer. Proceedings for a damages claim are made in accordance with the Civil Liability Act 2003. ”
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“ Section 140 of the Act outlines the maximum statutory compensation entitlement: (a) for compensation payable as weekly payments under part 9--$200000; and ”
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“ Section 40 of the Act defines rehabilitation as: (1) Rehabilitation, of a worker, is a process designed to-- ”
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“ Schedule 6 defines ‘medical treatment’ as: (a) a treatment by a doctor, dentist, physiotherapist, occupational therapist, psychologist, osteopath, podiatrist or speech pathologist; or ”
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“ A worker who receives an injury that results in permanent impairment is entitled to receive compensation for that permanent impairment. Permanent impairment compensation is in addition to any other compensation under this Act. See section 66 of the Act to calculate the amount of permanent ... ”
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“ Where a worker dies because of an injury, the insurer must pay expenses arising from the worker’s injury and death to persons who have an entitlement to compensation under section 194 of the Act. Under section 199 of the Act the insurer must pay reasonable expenses of the medical treatment of, or ... ”
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“ An injured worker may be referred for medical assessment. An insurer refers a matter to a tribunal by making a reference in the approved form, and giving the tribunal a copy of all relevant documents. A medical assessment involves the injured worker being examined by an approved medical ... ”
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“ Appeals against a decision of the medical tribunal are by and large final, except if there is fresh medical evidence. However the provisions of the Judicial Review Act 1991 are still applicable. ”
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“ Internal review Section 538 provides that, before an insurer makes a decision to reject an application for compensation or to terminate compensation, the insurer must undertake an internal review of that decision. Furthermore the Act provides that that review must be undertaken by a more senior ... ”
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“ Section 549 of the Act states that a claimant, worker or employer aggrieved by the decision of the authority may appeal to an appeal body – that is, an Industrial Magistrate. Section 550 outlines the procedures that must be followed for the appeal. ”
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