.jpeg@webp "Arbiitration at WorkCover WA")
arbitration at workcover wa
Fees (Disbursements)
Just like an application for conciliation, there is no filing fee for an application for arbitration.
However, before even considering making an application for arbitration, a worker should already have witness statements from all witnesses, GP consultation notes, and medico-legal reports from the treating GP and the treating specialist.
The insurer is then likely to send the worker to two specialist medical examinations - usually an occupational physician and another relevant specialist such as an orthopaedic surgeon or neurosurgeon. For stress claims, the insurer will have the worker examined by a psychiatrist. The worker only has to look at the reviews of those specialists to get an idea of what they are dealing with. The reviews are often shocking.
However, before even considering making an application for arbitration, a worker should already have witness statements from all witnesses, GP consultation notes, and medico-legal reports from the treating GP and the treating specialist.
The insurer is then likely to send the worker to two specialist medical examinations - usually an occupational physician and another relevant specialist such as an orthopaedic surgeon or neurosurgeon. For stress claims, the insurer will have the worker examined by a psychiatrist. The worker only has to look at the reviews of those specialists to get an idea of what they are dealing with. The reviews are often shocking.
When the worker receives the medico-legal reports from the insurer's specialists, the worker should then put those reports to his or her own treating doctors for their opinion and a supplementary medico-legal report .
This will be further report fees. The worker will often have to borrow money from family or friends or apply for release of their superannuation.
Even though the medico-legal reports from the insurer's specialists will often seem bogus, it is important to take them seriously and ask your treating doctors to explain why they are wrong.
Otherwise, an arbitrator might decide that you have not discharged your burden of proof. Arbitration is not about "truth and justice". It is whether the applicant has satisfactory evidence to discharge his or her legal burden of proof.
Often the insurer's specialist will allege that you are fit for certain occupations. The effective way to prove them wrong is to apply for those occupations and disclose your injury.
If employers don't want to employ you either because of your injury or they don't think you are qualified then you have proven that those occupations are not suitable employment.
If you do get offered a job, you have an obligation to take it in order to mitigate your losses. Your claim for income compensation will then be reduced, but this will also mean that your claim will be easier to settle.
However, if you don't apply for jobs and get constantly knocked back either because of your injury or lack of qualifications, an arbitrator is likely to decide that you have not discharged your burden of proof. It is not enough for a worker to say that no one will employ them or that they won't pass a pre-employment medical. They have to prove it with rejected job applications.
Unless witnesses for the worker agree to attend the arbitration hearing at no charge, the worker must pay for their travel, accommodation and loss of income.
Even though the medico-legal reports from the insurer's specialists will often seem bogus, it is important to take them seriously and ask your treating doctors to explain why they are wrong.
Otherwise, an arbitrator might decide that you have not discharged your burden of proof. Arbitration is not about "truth and justice". It is whether the applicant has satisfactory evidence to discharge his or her legal burden of proof.
Often the insurer's specialist will allege that you are fit for certain occupations. The effective way to prove them wrong is to apply for those occupations and disclose your injury.
If employers don't want to employ you either because of your injury or they don't think you are qualified then you have proven that those occupations are not suitable employment.
If you do get offered a job, you have an obligation to take it in order to mitigate your losses. Your claim for income compensation will then be reduced, but this will also mean that your claim will be easier to settle.
However, if you don't apply for jobs and get constantly knocked back either because of your injury or lack of qualifications, an arbitrator is likely to decide that you have not discharged your burden of proof. It is not enough for a worker to say that no one will employ them or that they won't pass a pre-employment medical. They have to prove it with rejected job applications.
Unless witnesses for the worker agree to attend the arbitration hearing at no charge, the worker must pay for their travel, accommodation and loss of income.
Legal Costs
Lawyers may charge their clients the following legal costs for an application for arbitration at WorkCover WA:
Item 5:
Preparation of application - 8 hours x $484 per hour = $3,872
Item 6:
First directions hearing, obtaining and filing further evidence, submissions, book of documents, list of authorities - up to 30 hours x $484 per hour = $14,520. However, this is for cases where there are multiple witnesses or a large volume of evidence.
1 hour x $484 - $484 for each additional directions hearing
3 hours x $484 = $1,452 for each interlocutory application
4 hours x $484 = $1,936 for pre-arbitration conference
3 hours x $484 = $1,452 for each interlocutory application
4 hours x $484 = $1,936 for pre-arbitration conference
Item 7:
Attendance at arbitration hearing and incidental preparation on the day - 10 hours x $484 per day = $4,840
Item 8:
Settlement of claim, including preparing of settlement offer
and negotiating - 10 hours x $484 per hour = $4,840
However, the insurer will often pay for legal costs if the claim is settled at a pre-arbitration conference.
If the arbitrator decides the application in the worker's favour, the insurer must pay the worker's legal costs. However, if the arbitrator dismisses the application, the insurer is not liable for the worker's legal costs. That is determined between the worker and their lawyer. Most law firms won't even do an arbitration hearing unless the worker deposits money into their trust account upfront. The worker should only engage a lawyer who makes the legal fee arrangement crystal clear from the outset, especially in relation to arbitration legal costs.
If the arbitrator decides the application in the worker's favour, the insurer must pay the worker's legal costs. However, if the arbitrator dismisses the application, the insurer is not liable for the worker's legal costs. That is determined between the worker and their lawyer. Most law firms won't even do an arbitration hearing unless the worker deposits money into their trust account upfront. The worker should only engage a lawyer who makes the legal fee arrangement crystal clear from the outset, especially in relation to arbitration legal costs.
Timeframe
1. After the certificate of outcome is issued by the conciliation officer, the applicant has 28 days to lodge an application for arbitration.
2. Once the application is lodged, it takes WorkCover WA 1 day to 1 week to process the application.
3. The first directions hearing is listed around a month later. The worker should have already filed all of his or her evidence and should only have to file ongoing progress certificates, invoices, and job applications. The insurer will often take 6 months to file all of their evidence including medicolegal reports and witness statements. However, sometimes the worker's medical practices can be holding things up by not releasing medical records. Or the worker's treating specialist could be holding things up with their supplementary medico-legal report because they are busy, sick, or on holiday.
4. The arbitrator will often schedule further directions hearings every month or so to check whether the parties have filed all of their evidence.
5. Once all evidence is filed, an arbitration hearing is listed. The next available date is often 3 months away.
6. The parties are asked if they would like to participate in a pre-arbitration conference. This is settlement conference conducted by a highly persuasive facilitator who will more often than not achieve the best settlement offer for a worker based on the quality of the evidence filed by both parties. Most pre-arbitration conferences can occur within 2 weeks to a month and often result in a settlement.
7. If the parties do not reach agreement, a 1 day to 1 week arbitration hearing takes place depending on the number of witnesses. Medical doctors do not attend the hearing - only their reports are admitted into evidence. Non-medical experts such as psychologists and rehabilitation consultants are often allowed to attend by videolink to save on their attendance fees. Witnesses who live outside of the Perth metropolitan area are often allowed to attend the arbitration hearing by videolink.
The worker is usually expected to attend the arbitration hearing in person, unless they are not medically fit to travel or cannot travel because of financial hardship.
The worker will be asked to confirm that the witness statements that he or she has filed are his or her statements. The worker will be asked to confirm if the statements are true and correct. If a mistake has been identified, the worker should say so. Then the worker will be cross-examined by the insurer's lawyer.
Cross-examination by the insurer's lawyer is likely to be one of the most stressful events of the worker's life. The worker should not argue or debate with the cross-examiner. The worker should answer the questions shortly with "yes, "no", "I don't know", "I don't recall", "I don't understand". The worker has already filed his or her witness statement, so does not have to repeat what is already in the statement. Getting angry often counts against the worker, so keep your cool.
The cross-examiner will often put inconsistencies to the worker, such as not mentioning medical history to the insurer's doctor or claiming they were completely healthy before the injury, when their medical history would suggest otherwise. Or the worker didn't mention certain important details to the doctor when they were first injured or important symptoms over time. The cross-examiner might put surveillance footage or FaceBook photos to the worker and allege that they are moving around inconsistently with the worker's medical restrictions.
Cross-examination can be "death by a thousand cuts" to destroy the worker's credibility. Then the arbitrator won't trust the worker's medico-legal reports. An arbitrator can tolerate some inconsistencies, but if there are too many, or an inconsistency that is too compelling, the arbitrator won't believe a worker on crucial or important issues unless the worker is corroborated by other evidence, especially contemporaneous evidence. This is evidence that is written down as soon as or soon after an event happens. This can include diary notes, text messages, and FaceBook messages.
The worker should obtain and read all of their past medical history and go over it with an experienced lawyer to identify any inconsistencies. Surveillance footage and photos should be put to the worker's doctors to see if that changes their opinions. That way you beat the insurer's lawyer to the punch and it doesn't look like you are hiding something. Or the risks of arbitration can be better identified, and so you settle your claim instead.
The worker will be asked to confirm that the witness statements that he or she has filed are his or her statements. The worker will be asked to confirm if the statements are true and correct. If a mistake has been identified, the worker should say so. Then the worker will be cross-examined by the insurer's lawyer.
Cross-examination by the insurer's lawyer is likely to be one of the most stressful events of the worker's life. The worker should not argue or debate with the cross-examiner. The worker should answer the questions shortly with "yes, "no", "I don't know", "I don't recall", "I don't understand". The worker has already filed his or her witness statement, so does not have to repeat what is already in the statement. Getting angry often counts against the worker, so keep your cool.
The cross-examiner will often put inconsistencies to the worker, such as not mentioning medical history to the insurer's doctor or claiming they were completely healthy before the injury, when their medical history would suggest otherwise. Or the worker didn't mention certain important details to the doctor when they were first injured or important symptoms over time. The cross-examiner might put surveillance footage or FaceBook photos to the worker and allege that they are moving around inconsistently with the worker's medical restrictions.
Cross-examination can be "death by a thousand cuts" to destroy the worker's credibility. Then the arbitrator won't trust the worker's medico-legal reports. An arbitrator can tolerate some inconsistencies, but if there are too many, or an inconsistency that is too compelling, the arbitrator won't believe a worker on crucial or important issues unless the worker is corroborated by other evidence, especially contemporaneous evidence. This is evidence that is written down as soon as or soon after an event happens. This can include diary notes, text messages, and FaceBook messages.
The worker should obtain and read all of their past medical history and go over it with an experienced lawyer to identify any inconsistencies. Surveillance footage and photos should be put to the worker's doctors to see if that changes their opinions. That way you beat the insurer's lawyer to the punch and it doesn't look like you are hiding something. Or the risks of arbitration can be better identified, and so you settle your claim instead.
8. After the arbitration hearing, the parties often submit closing written submissions. This often takes around a month.
9. Then the arbitrator will take 1 to 3 months to make a decision depending on the amount of evidence that he or she has to go through.
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