Common Law Disclosure Policy
The object of the pre-proceedings process is to facilitate the just and expeditious resolution of the real issues of a claim, with minimum expense and duration for all parties. Appropriate disclosure by all parties helps identify and resolve the real issues, so parties can investigate and assess the prospects of the claim and prepare for early resolution. As a model litigant, WorkCover has an obligation to ensure appropriate disclosure occurs in a timely manner by all parties throughout the management of a claim.
This policy has been developed to clearly explain how WorkCover applies and expects disclosure obligations to be undertaken under section 279 of the Workers' Compensation and Rehabilitation Act 2003. If relevant documents are not disclosed they cannot be used at trial.
Disclosure must occur within 21 business days of the service of Notice of Claim or receipt of request, subject to s284.
Where a document includes information that is not required to be disclosed e.g. it is privileged or gives rise to a reasonable suspicion of fraud, the document should still be disclosed with this information removed or concealed.
This disclosure obligation continues throughout the pre-proceedings and litigation process.
What must be disclosed?
The parties must exchange all documents relating to:
- The circumstances of the event resulting in the injury
- The worker's injury and
- The worker's prospects of rehabilitation (section 279(1)(a)).
Examples of these documents include:
- Any statements made by the claimant, employer, contributor(s) or other witness(es) which have been documented and have regard to the circumstances of the accident and the worker's injury. This includes:
- Any written or formal statements, whether signed or unsigned, and in particular any documents that amount to a statement which has been adopted by the witness
- Any memoranda, file notes, letters to other parties containing witness statements; this includes any updates to memoranda and file notes to include the date, name and position title of the author who made those changes
- Any recorded information used to influence a claim decision
- Contact details for witnesses, including their relationship to the worker, if any
- Any applications for compensation made by the worker and the associated claim files relating to the event
- Letters of instruction and/or questions to factual investigators and liability experts
- Documents from the employer about previous similar events, incident reports, maintenance records, logbooks, prior complaints, investigative reports, claimant's personnel file, training records and risk assessments.
The Injury (includes financial loss from the injury)
- Medical evidence and relevant information about the worker's claim
- All personal injuries, illnesses and impairments of a medical, psychiatric or psychological nature sustained by the worker from, before or after the event (whether related to the event or not) that may affect the assessment of permanent impairment and amount of damages. This includes details of any person and insurer that a claim has been brought against.
- Wage details of the claimant or a comparative employee
- Letters of instruction and/or questions to doctors and allied health providers (including treating and independent practitioners)
- The nature of the injury and of any impairment or financial loss resulting from the injury
- The worker's medical history, as far as it is relevant to the assessment of the claim.
- If applicable, the medical treatment and rehabilitation the worker has sought from, or been provided with, by the employer or WorkCover
- All steps taken by the worker to mitigate their loss
- Any rehabilitation reports.
What is not required to be disclosed?
Documents that are protected by legal professional privilege, Iegal communication between a client or the client's agent and their professional legal advisors for the dominant purpose of obtaining or providing legal advice. However, section 284(2) outlines that even if legal professional privilege applies, investigative, medical and rehabilitation reports are relevant documents under section 279 and must be disclosed.
In the situation where WorkCover or a contributor has reasonable grounds to suspect a claimant of fraud, information or documents which would alert the claimant to the fraud or could help further the fraud will not be disclosed. However, once there are no longer grounds for a suspicion of fraud, relevant documents must be disclosed (including surveillance). The conclusion of a suspicion of fraud will be made on a case by case basis but should coincide with a clear determination not to prosecute a claimant for fraud.
Surveillance should be disclosed in the instance it confirms the extent of the claimant's claimed incapacity. Surveillance which does not contain footage of the claimant will be considered irrelevant and hence does not need to be disclosed.
- Last updated
- 29 June 2015
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