Opinion
Disputed statutory benefit matters – questions to ask your client
16th Jan 2020
Although every disputed statutory benefit matter is different, there are some key questions to ask your client in every case.
What does the plaintiff want to get out of the proceeding?
After explaining the scheme to the plaintiff and their potential rights and entitlements under the relevant Act, I ask them for their position. Some plaintiffs just want to have access to certain medical treatment in order to get better and go back to work. Some plaintiffs have already paid for their treatment and have returned to work, so they just want to be reimbursed for their out-of-pocket expenses and time out of the workforce. Some plaintiffs are too stressed and frustrated with the process and prefer to resolve their matters rather than experience the anxiety of giving evidence in court; other plaintiffs are happy to give evidence as long as they are able to access all the entitlements which have been denied to them. How a legal practitioner prepares for a statutory benefit proceeding, including the negotiation process with the defendant, should be based on the individual needs of the particular plaintiff. At the end of the day it is their case and it is our job to get them the best result possible with the available evidence while fulfilling our paramount duty to the court and the administration of justice.
Is there an entitlement to weekly payments of compensation? When does it arise and when does it cease?
In assessing the plaintiff’s entitlement to weekly payments of compensation, you must take into account repayment of Centrelink and preclusions on weekly payments such as early release of superannuation and income protection. The plaintiff cannot be compensated for the same period twice, so if the plaintiff has accessed income protection due to the injury there will be little or no entitlement to weekly payments during the period for which income protection was paid. Conversely, a payment of weekly payments of compensation which coincides with the period in which the plaintiff received income protection could mean that income protection needs to be repaid once weekly payments have been received. In claiming weekly payments, legal practitioners should know when the plaintiff’s potential entitlement to such payments commenced, such as when an incapacity for pre-injury duties arose or when the first WorkCover certificate of capacity was issued. Similarly, legal practitioners need to be aware when any potential entitlement ceased, such as when the plaintiff received a clearance certificate for pre-injury duties, or in a psychological injury claim, when the plaintiff regained capacity for pre-injury duties but with a different employer.
What medical and like expenses are reasonable and/or necessary?
The ability to access medical treatment is of outmost importance to every plaintiff. Without the correct medical treatment, most plaintiffs cannot progress their claims to the stage of permanent impairment or common law as they may not be considered stable. Neither can they reach their maximum level of improvement and mitigate their loss as required under the relevant legislation. In claiming past and/or future medical and like expenses as part of disputed statutory benefit proceedings, legal practitioners must know what treatment the plaintiff has had for their work-related injuries and what treatment is anticipated in the future. Much of this information can be gathered by obtaining medical reports which address the issue of treatment from treating medical practitioners. Plaintiffs, however, should also be specifically asked about what treatment they intend to have, as not all plaintiffs will agree to have the treatment which has been proposed to them. Sometimes treatment requirements are unpredictable, so legal practitioners must tread carefully when claiming and resolving past and future medical and like expenses in statutory benefit matters. If possible and if appropriate, plaintiffs with unresolved injuries who require ongoing treatment should not resolve their claims unless future medical and like expenses are included.
Does the plaintiff have other potential rights and entitlements?
When preparing for statutory benefit proceedings and when deciding whether such proceedings should be resolved through settlement or run to conclusion before a magistrate or a medical panel, it is essential to address whether the plaintiff has any potential future rights in relation to claims for permanent impairment and claims for damages under common law. A settlement of a statutory benefit proceeding is usually without prejudice to the plaintiff’s future claims. However, a negative finding by the court, or even a medical panel, can have a detrimental impact on the plaintiff’s ability to bring future claims with prospects of success. Plaintiffs with ongoing injuries and limited future rights, such as those who may not be able to claim damages under common law, may be more willing to proceed to court or to a medical panel in order to be able to access the whole of their disputed statutory benefit claims.
Prepare your matters well before the anticipated hearing date!
In order to ensure that statutory benefit matters are dealt with quickly and cost-effectively, early preparation is vital. The legal practitioner should meet the plaintiff well before the date of hearing to address the above-mentioned issues. Meeting the plaintiff at least a few weeks prior to the hearing date could lead to various discoveries, including a change in the plaintiff’s circumstances which needs to be addressed by obtaining further medical material, or new disputes which have arisen between the plaintiff and the defendant.
An earlier version of this article was published in Issue 152 of Precedent, ‘Statutory Compensation Schemes’.
Margarita Fudim (Yerusalimsky) has been a barrister since October 2016. Her practice is Victorian-based. She specialises in all personal injury claims including workers’ compensation, motor vehicle accidents, product and public liability, medical negligence and intentional torts. Prior to coming to the Bar, Margarita worked as a solicitor and as a managing associate for over eight years at Zaparas Lawyers. EMAIL y.margarita@vicbar.com.au.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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