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 at Obiter - News & Updates, via the link above.
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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“ Commentaries ”
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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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“ While references to legislation and courts in this guide are NSW based, unless otherwise stated, the general law relating to subpoenas does not differ between states – only the procedure in some respects. In some Australian jurisdictions the term ‘summons’ is used instead of ‘subpoena’, as in ... ”
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“ Uniform evidence law applies in NSW, Victoria, Tasmania and the Territories. However there are variations between the various Evidence Acts in these jurisdictions. There is a useful comparative chart prepared by the Commonwealth Attorney-General’s Department regarding differences between the ... ”
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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, is ... ”
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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 jurisdiction/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. Technically, documents should be produced to the court, subject to the objection: see Objections below. Where the nature of the ... ”
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“ In criminal cases s 225 of the Criminal Procedure Act 1986 (NSW) 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 ... ”
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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 NSW 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] ... ”
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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 documents ... ”
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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 [1984] HCA 85 and has frequently been claimed, considered and applied ... ”
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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. See: Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [11]. Both forms ... ”
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“ If the subpoena is pressed over your objection you will need to file the appropriate document to bring the objection before the Court. If unsure, check the rules of the Court in which the subpoena is issued or ask the Court registry. The procedure varies not just from state to state, but from court ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 (NSW) contains the provisions relating to subpoenas. In other jurisdictions see: r 414 Uniform Civil Procedure Rules 1999 (Qld); Order 42-42A Supreme Court (General Procedure) Rules 2015 (Vic) In criminal cases subpoenas are covered in s 220 ... ”
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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 a party to obtain evidence that might support their case. It should be an integral part of the case theory. Issue a subpoena to obtain documents that are likely to exist and will ... ”
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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 the instructions and the formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building the case. However, ... ”
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“ Applying to the court The procedure for issuing subpoenas and inspecting documents is set out in the applicable civil or criminal procedure rules for each jurisdiction and covered in various levels of detail on the various court websites. See the Victorian County Court website, for example, which ... ”
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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 specific court when issuing a 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 officers. ... ”
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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 (NSW) and s 224 Criminal Procedure Act 1986 (NSW); r 419 ”
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“ In criminal proceedings, generally 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 (NSW). However, some jurisdictions differ – Queensland legislation specifically provides that a subpoenaed ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if there is an objection, unless the objection is for oppression or relates to public interest immunity, then the documents should be produced, subject to the objection. The way to deal with this is to produce ... ”
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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 the issuing party or their lawyer. 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 ... ”
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“ Access to, or inspection of, documents produced under subpoena is governed by the rules of court applicable to the various jurisdictions and always at the court’s discretion - see, for example, r 33.8 Uniform Civil Procedure Rules 2005 (NSW). It is important to know how access orders are dealt with ... ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a practitioner charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily ... ”
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“ District Court (QLD) Supreme Court (QLD) ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ Initial conference At the first meeting with the client it is critical to establish not only the date and nature of the injuries but the status of the claim and any proceedings. Using the Retainer Instructions will assist in this process. ”
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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. A self-insured employer must notify WorkCover. If the employer fails to notify the insurer or WorkCover, the injured worker or ... ”
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“ From the outset of a matter and as it continues it is important to obtain all necessary information related to the client, their injury and the claim. This is a critical component of acting in workers’ compensation matters and must be given high priority. No proper advice can be given or steps ... ”
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“ Claims can generally be made for all workrelated injuries, including psychiatric and psychological injuries where the client’s employment is a significant contributing factor. ”
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“ Most applications are lodged with WorkCover Queensland: online via the WorkCover website; ”
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“ In very limited circumstances a client’s work-related injury may allow them to be eligible to receive necessary and reasonable lifetime treatment, care and support under the National Injury Insurance Scheme Queensland. The NIIS is governed by the provisions of the National Injury Insurance Scheme ... ”
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“ Section 140 outlines the maximum statutory compensation entitlement, by reference to QOTE. QOTE is defined in s 10A. It is the seasonally adjusted amount of Queensland full-time adult ordinary time earnings, as declared by the Australian Statistician. The current rate of QOTE is published in the ... ”
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“ Section 141 provides for the time from which compensation becomes payable, by reference to the day that the worker’s injury is first assessed by the applicable medical assessor and, for weekly benefits, the day the worker ceases work. ”
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“ Part 8A of the Act deals generally with when compensation entitlement ceases. Section 144A provides that weekly payments stop when the first of the following happens: (a)the incapacity because of the work related injury stops; ”
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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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“ Permanent impairment compensation is in addition to any other compensation under the Act. Where an injured worker is assessed as having 30% or greater degree of permanent impairment (DPI) they are entitled to additional lump sum compensation: s 192. ”
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“ If a worker has a terminal condition, as defined in s 39A, they are entitled to lump sum benefits as set out in s 128B. They are also entitled to the usual compensation under the Act, but only until payment of the lump sum benefits. ”
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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 s 194. Under s 199 the insurer must pay reasonable expenses of the medical treatment of, or attendance on, the worker and also ... ”
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“ Section 40 defines rehabilitation and its purpose: (1)Rehabilitation, of a worker, is a process designed to— ”
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“ An injured worker eligible to make a workers’ compensation claim may also be able to sue their employer for negligence and obtain damages. These are generally known as ‘common law claims’ and they proceed in the District Court or Supreme Court as appropriate like any other personal injury claim. ... ”
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“ For injuries sustained on or after 31 January 2015, there is no permanent impairment threshold for injuries before workers are permitted to bring a common law claim. There is a greater than 5% permanent impairment threshold for injuries sustained from 15 October 2013 to 31 January 2015. Workers ... ”
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“ This guide does not deal with personal injury claims in detail. See the By Lawyers Queensland Personal Injury publication for assistance. Note that such claims must generally be brought within three years of the cause of action arising, subject to other relevant legislative requirements. ”
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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 specialist. ... ”
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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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“ Part 2 of Chapter 13 of the Workers’ Compensation and Rehabilitation Act 2003 provides the insurers must undertake an internal review before any decision to reject a claim or to terminate compensation is made. The reviewer must be a more senior officer than the person who proposes to make the ... ”
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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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“ When finalising a matter it is important to terminate the retainer. This informs the client in writing that all work on the matter is complete and that no further work will be undertaken unless the firm is otherwise instructed. If the matter is finalised in such a way that the client retains rights ... ”
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