Pre-proceedings is the initial phase of the common law process; 'pre' meaning before litigation. The following outlines a typical pre-proceedings process.
- A notice of claim for damages (NOC) is lodged with both WorkCover and the employer. WorkCover reviews compliance of the NOC to ensure all relevant information is provided and then contacts both:
(a) the employer to discuss the claim and management process, and to obtain any information the employer may have regarding the injury and/or worker
(b) the person making the claim (usually the plaintiff solicitor) to discuss the claim, compliance of the NOC and identify claims for informal negotiation.
- The WorkCover representative will review the statutory file and determine the best management plan for the claim.
- WorkCover uses the information obtained from the employer as well as reports and communications recorded on the worker's statutory claim to investigate. Additional investigations may take place depending on the claim specifics, for example a medical review or referral to a factual investigator to obtain witness statements.
- WorkCover will release all relevant information to the plaintiff solicitors as it is received. This process is called disclosure and is an obligation of both parties.
- Within six months of receiving the NOC, WorkCover is required to make a decision on liability (whether the employer was at fault). We will always contact the employer and plaintiff solicitor to discuss this decision and try to make the decision as early as possible.
- At this point, WorkCover is usually in a position to make an offer of settlement.
- If a claim is unable to settle informally, WorkCover and the plaintiff solicitor will proceed to compulsory conference within three months of WorkCover's liability decision. Employers will be invited to attend these conferences. The conference is an opportunity for all parties (including any other involved party, e.g. host employer or manufacturer of equipment) to meet and discuss the claim facts, who should be held liable (at fault), and how much the claim is worth.
If the injured worker agrees to a settlement figure, they will sign an agreement that prevents them from making any other claims relating to the event at work and keeps the terms of the settlement confidential.
If an agreement to settle is not reached, all parties must exchange mandatory written final offers, which are open for 14 days.
A worker has 60 days from the date of the settlement conference to commence litigation.
- Last updated
- 14 June 2019
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