Yerusalimsky, Margarita --- "Disputed statutory benefit matters: Preparing for court proceedings" [2019] PrecedentAULA 38; (2019) 152 Precedent 62

• DISPUTED STATUTORY BENEFIT MATTERS
• PREPARING FOR COURT PROCEEDINGS
• By Margarita Yerusalimsky

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DISPUTED STATUTORY BENEFIT MATTERS
PREPARING FOR COURT PROCEEDINGS
By Margarita Yerusalimsky

Every case is different. How a legal practitioner prepares for one case may not be applicable to the next. However, there are some key elements that will apply to every case. If we look at disputed statutory benefit matters alone, we can identify with some precision what these key elements are. Addressing these key elements when preparing for disputed statutory benefit matters will go a long way towards handling them efficiently and cost-effectively.

In Victoria, disputed statutory benefit matters which relate to workers’ compensation claims under both the old Act (Accident Compensation Act 1985 (Vic)) and the new Act (Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)) are heard in the Magistrates’ Court. Legal practitioners who issue these types of proceedings should familiarise themselves with the relevant rules that apply to Magistrates’ Court proceedings.^[1] These types of proceedings involve orders for costs, which can be made by the court on the relevant scale depending on the monetary value of the compensation claimed.^[2]

Statutory benefit disputes that are run in the Magistrates’ Court attract rules of evidence.^[3] Practitioners preparing for these types of proceedings should consider the admissibility of the evidence upon which they seek to rely. The types of evidence may include documents which may need to be tendered, such as medical reports and witness statements, or the viva voca evidence given by witnesses which may be called.

Preparing for a disputed statutory benefit matter may therefore be similar to preparing for a common law trial, albeit on a smaller scale and without the need to address a civil jury. Although the amount of the claim disputed may not be great, considerable preparation, costs and time may be involved. Having appeared in numerous disputed statutory benefit matters, both in Melbourne and in regional Victorian courts, my experience has been that time and cost, both for the court and the parties involved, can be saved if the following matters are addressed in the preparation process.

THE INJURED WORKER

As legal practitioners we tend to look at court rules, costs and rules of evidence first and foremost. However, the most important actor in these types of cases is the injured worker, or more formally the plaintiff. It is of outmost importance that the needs of the plaintiff are known to the legal practitioner and addressed appropriately. This very important aspect is often either missed entirely or left to the very end in preparing for the court proceeding.

When I meet the plaintiff, I ask a series of questions:

1. 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.^[4]

2. 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, we must take into account repayment of Centrelink and preclusions on weekly payments such as early release of superannuation^[5] 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. Early release of superannuation moneys will involve a preclusion of weekly payments of compensation for a period of time. If a claim for weekly payments is resolved for 13 weeks, for example, from x week to z week, and the plaintiff was paid superannuation which led to a preclusion period during those weeks, then there would be no entitlement to weekly payments of compensation and the resolution would be fruitless. 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.^[6] 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 stress claim, when the plaintiff regained capacity for pre-injury duties but with a different employer.^[7]

3. 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.^[8] Neither can they reach their maximum level of improvement and mitigate their loss as required under the Act.^[9] 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.

4. 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.

THE BENEFIT OF EARLY PREPARATION

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.

All disputed statutory benefit matters need to be amalgamated in the one proceeding.^[10] For example, if a proceeding is issued on a terminated claim for weekly payments and then at the hearing the defendant raises that another notice was issued to the plaintiff terminating medical expenses, the proceeding would likely have to be adjourned so that pleadings could be amended to include the additional notice. Adjournments caused by lack of updated or relevant evidence and the need to amend pleadings cause additional stress, delay and cost. The party seeking a late adjournment is often the party against whom an adverse cost order is made by the court. Further, unreasonable delays due to lack of preparation can be viewed as a breach of the legal practitioner’s duty under the Civil Procedure Act 2010 (Vic).^[11] An early review of the file and an early meeting with the plaintiff is likely to eliminate the need for unnecessary adjournments and adverse cost orders.

TO SETTLE OR NOT TO SETTLE?

When preparing for statutory benefit proceedings, legal practitioners should consider whether the matter is of a type that can be resolved. Often a resolution that addresses the plaintiff’s needs within the scope of their rights and entitlements is the best way forward. It saves court time, it saves legal costs and the plaintiff’s stress associated with the unknown outcome of a legal process. It provides the plaintiffs with certainty of what they are getting and peace of mind that it won’t affect any potential future claims. It is also the legal practitioner’s duty to try to resolve matters that are capable of resolution.^[12] In order to settle a case appropriately, however, it must be prepared in the way outlined in this article. Not every case can be resolved. Some cases need to be heard by a magistrate and others, especially those with only medical issues in dispute, determined by a medical panel. To prepare for cases which cannot be resolved, we must be able to put our best foot forward. This involves identifying the key issues in each case early and ensuring that the medical evidence that is requested addresses those issues. If the dispute is factual in nature, we must prepare witness statements and gather other supportive documented evidence such as CCTV footage or photographs. When a case needs to be run in the Magistrates’ Court, the magistrate is often interested in case law, especially recent decisions of different magistrates in the same court. Legal practitioners should identify any such relevant recent decisions prior to hearing and have copies available to hand up to the magistrate. A few days prior to hearing, speak to your chosen counsel about whether the case is capable of resolution or whether it needs to be prepared for final determination by the court or a medical panel.

SUMMARY OF KEY POINTS:

• Understand your client’s needs;

• Enquire about any preclusions on weekly payments of compensation;

• Know where your client stands in terms of past and future medical treatment;

• Prepare your matters well before the anticipated hearing date; and

• Communicate with your client and your counsel during the preparation time and not at the door of the court.

Margarita 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 [e-mail].

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^[1] Magistrates’ Court General Civil Procedure Rules 2010.

^[2] Ibid, Appendix A.

^[3] Uniform Evidence Act 2008 (Vic).

^[4] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r3.1.

^[5] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s172.

^[6] Ibid, ss160-164 and 167.

^[7] Kerridge v Monsfelt [2009] VCC 154.

^[8] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss55 and 325(1).

^[9] Ibid, s325(2)(f).

^[10] Magistrates’ Court General Civil Procedure Rules 2010, reg 4.01 and 9.01.

^[11] Civil Procedure Act 2010 (Vic), s25.

^[12] Ibid, s22.