The WorkCover common law process
The initiating step in the Victorian WorkCover common law lump sum process is for a serious injury application to be prepared and lodged. You will need to obtain what’s called ‘serious injury certificate’. Once done, then you will be entitled to pursue lump sum compensation.
This doesn’t necessarily mean that you’ll be entitled to lump sum compensation, however.
The common law process can be complicated and there are a number of different roads your matter can take which this page will explore.
To help you better understand the process, we’ve created the chart below:
Table of Contents
Step 1 – Preparation of a serious injury application
The preparation of serious injury application is the first step in the common law claim process.
The following material typically makes up a serious injury application:
Medical material
Medical reports and other medical material from both your treating doctors and other health providers as well as medical material from IME doctors you’ve been assessed by.
Affidavit material
Affidavit material from yourself and in some instances others who are aware how your injury impacts your life. The aim of affidavit material is to paint a before and after picture as to how you were before the injury and how you are now.
Taxation material and other income related material
Typically tax returns for a few years prior to the injury and tax returns after the injury will be included.
Serious injury claim document
This is referred to as the Form A document. It sets out what you’re claiming and other relevant information relating to the application.
Medical authority
This is referred to as the Form D document. It is a medical authority that will allow the other side to request medication material in relation to your application. This authority gives them your written permission to request this material.
Step 2 – lodgement of the serious injury application
The serious injury application, once compiled, then gets lodged on the Victorian WorkCover authority.
A paper copy can be sent to the Victorian WorkCover Authority, or alternatively it can be emailed to them or a copy of the application can be uploaded via their online portal.
The Victorian WorkCover Authority then appoints a law firm to review the application and make a decision in relation to it.
The Victorian WorkCover Authority has a number of law firms that they review these matters to. These law firms are called panel firms.
The decision that the law firm needs to make is to confirm that you have a serious injury or deny that you have a serious injury.
If they grant that you have a serious injury then they will provide your lawyers with a serious injury certificate which is a document that confirms that your injury meets the serious injury threshold.
The law firm has 120 days to make a decision in relation to your serious injury application.
Step 3a – If ‘yes’ to serious injury
If the law firm is of the opinion that you have a serious injury and provides you with a serious injury certificate, then the next step in the process is for the parties to proceed to a settlement conference.
By parties this means your lawyers and the lawyers appointed by the Victorian WorkCover authority.
Sometimes a barrister or barristers may be involved in this conference.
If the matter settles at this conference, then your common law matter is finalised.
You will be paid your compensation, usually, within 4 to 6 weeks after agreement is reached between the parties to settle the matter.
You’ll be required to sign a release document which confirms the agreement reached between the parties.
You will likely also be required to sign a settlement authority which is a document for your lawyers file that confirms your instructions to resolve the matter.
Step 3b – if the matter doesn’t resolve at conference
If the matter does not resolve at this conference, then the parties are required to make written offers to each other.
These offers are called statutory offers and statutory counter offers.
It is very important to keep in mind that these offers are not your typical offers.
These offers have implications insofar as the payment of costs is concerned once your matter has resolved.
If your matter does not resolve by way of this offer and counter offer process, then if you wish to continue to proceed with the matter your lawyers will need to issue and serve a document called a writ.
This document initiates court proceedings, which will either be in the County Court or Supreme Court.
A timetable will usually be agreed upon between the parties that outlines when relevant things must occur in relation to the preparation of the matter.
Typically, you can expect the matter to be listed for hearing anywhere from 6 to 12 months from when proceedings are issued.
Depending on the matter and what issues are in dispute, it can in a limited number of cases take longer than 12 months to be reached.
Also, in the months leading up to the hearing, the matter will likely be the subject of a mediation which involves the parties getting together with a mediator to try and see if the matter can be resolved.
Step 4 – If ‘no’ to serious injury
If the lawyers who were appointed to review your serious injury application are of the opinion that you do not have a serious injury, then if you still wish to proceed with the matter you will need to issue proceedings in the County Court where it will be up to a Judge to make a decision regarding whether your injury is a serious injury or not.
You can expect the matter to be listed typically in 6 to 8 months from when proceedings are issued.
At any time prior to your matter being heard, and even during the running of the matter, the parties are able to discuss the matter and potentially reach an agreement to resolve the matter by way of you being provided with a serious injury certificate (and in some instances, resolve the matter by way of compensation).
Assuming that you are successful and you obtain a serious injury certificate, then your matter will follow the process as outlined above (as if you were provided with a serious injury certificate following the 120 day determination period).
The parties will be required to conference the matter and if the matter does not resolve then you’ll need to go through the formal written offer and counter offer process.
Again if the matter doesn’t resolve during this process then a writ would need to be issued.
You should be represented if pursuing a common law claim
We strongly recommend that if you are intending to pursue a common law claim that you are legally represented.
While certain aspects of a WorkCover claim are able to be dealt with by an injured worker themselves, a common law claim is not one of them in our opinion.
Common law claims can be complex and require specialised knowledge and experience in order to navigate the process and to obtain the best outcome.
There are very strict deadlines throughout the serious injury/common law process.
The consequences of missing those deadlines can be major, and this is one of the reasons we recommend you obtain legal representation to assist you with this part of the claim. This page offers a general overview of the process and should not be considered legal advice.
Conclusion
The WorkCover common law process can be complex to understand.
The process is commenced with the preparation and lodgement of a serious injury application.
Once the application has been lodged, the process differs depending upon whether you obtain a serious injury certificate or not.
If you do, then the matter is conferenced and if the matter doesn’t resolve at conference, a statutory offer and counter offer process will take place. If the matter still hasn’t resolved after this process, then County or Supreme Court proceedings will need to be issued.
If you do not obtain a serious injury certificate after lodgement of the application, then proceedings will need to be issued in the County Court. If you are successful in obtaining a serious injury certificate, the matter will then follow the same process as if you had obtained a serious injury certificate in the first instance.
