Ian Brown Slater Gordon Lawyers DO LAWYERS HELP

Ian Brown Slater & Gordon Lawyers DO LAWYERS HELP OR HINDER PATIENT RECOVERY? © Slater & Gordon Limited 2008

Australian Association of Social Workers Ltd Queensland North Queensland Branches Conference 2009 `Do lawyers and the legal process help or hinder an injured person’s rehabilitation & recovery? ’ Presented by Ian Brown Practice Group Leader, MVA QLD © Slater & Gordon Limited 2008

Topics we will cover • • • Reputation & Results™ Views about lawyers and legal process The role of the lawyer in a personal injuries claim Entitlement to compensation Returning to work Legal advice by experienced/reputable lawyer Common Q&A Importance of early referral Legal Costs – myth v. reality Where to find a good lawyer © Slater & Gordon Limited 2008

Views about lawyers and the legal process Reputation & Results™ • They advise workers to avoid returning to work full time as it may reduce the payout • They advise workers to avoid returning to work with an alternative employer until after the legal case with previous employer is finalised • Lawyers are too expensive and will take the majority of the payout (resulting in clients not obtaining legal support and therefore experiencing increased stressors) © Slater & Gordon Limited 2008

Commonly held views about lawyers and the legal process cont… Reputation & Results™ • Some lawyers give medical advice to patients to avoid certain activities (encouraging disability) • Lawyers can be critical of medical and allied medical professionals who encourage increasing activity • Some clients keep their lives on hold until after a court case (which can be prolonged), believing functional improvements can limit payouts © Slater & Gordon Limited 2008

The role of the lawyer Reputation & Results™ • After the GP or primary treatment facility, the lawyer is often the first person contacted • Often plays a combined role of advocate, rehabilitation co-ordinator, financial advice support and social worker • To ensure that the injured person receives appropriate medical and rehabilitation treatment • The primary point of contact between the injured person and the insurance company • All insurance companies are different – some have better systems in place to manage the needs of an injured person © Slater & Gordon Limited 2008

Entitlement to Compensation Reputation & Results™ • Injuries at work – Work. Cover Queensland 23 self insurers. Both statutory and negligence claims. • Injuries at work – Comcare – Commonwealth and a number of corporate employers. Both statutory and (more limited) negligence claims • Injuries in a motor vehicle accident. 6 Compulsory Third Party (CTP) insurers. Negligence claims only. • Other injuries eg medical negligence, trips and falls etc. Various public liability insurers. Negligence claims only. © Slater & Gordon Limited 2008

Work. Cover claims • • • Reputation & Results™ Any worker injured in the course of their employment is entitled to workers’ compensation benefits – even if it is the worker’s fault Entitled to receive benefits in the form of wages, medical and rehabilitation expenses and, in some cases, a lump sum payment Maximum payment $218, 400. 00 If the employer caused the injury • The worker can sue their employer – no maximum amount they can receive © Slater & Gordon Limited 2008

Motor Vehicle Accident claims Reputation & Results™ If the accident was someone else’s fault • • Injured person can claim damages insurance company must also fund reasonable medical and rehabilitation treatment If the accident was not someone else’s fault • • Injured person cannot claim Must rely on social safety net, family or savings © Slater & Gordon Limited 2008

Medical negligence and public liability claims Reputation & Results™ If the accident/incident was someone else’s fault • • Injured person can claim damages insurance company may (rarely) also fund reasonable medical and rehabilitation treatment If the accident/incident was not someone else’s fault • • Injured person cannot claim Must rely on social safety net, family or savings © Slater & Gordon Limited 2008

What can an injured person claim for? Reputation & Results™ • Pain and suffering • Expenses they have paid eg medical expenses, medication • Wages or income they have lost • Wages or income they may lose in the future • The cost of help in and around the home – both in the past and which might be needed in the future • Future medical expenses, equipment, prosthetics etc • Costs associated with modifying a home or car © Slater & Gordon Limited 2008

Hurdles facing injured people seeking compensation Reputation & Results™ • Strict time limits for making claims • Complex and confusing procedures in order to pursue a claim • Restrictions on the amount of compensation an injured person can receive – examples: • • • Injury Scale Value (ISV scale) Caps on claims for loss of wages/income Limits on an insurance company’s obligation to pay an injured person’s legal costs © Slater & Gordon Limited 2008

Hurdles facing injured people seeking compensation - Some examples of “Injury Scale Values” Reputation & Results™ Pain and suffering compensation - all claims except injuries at work Total loss of taste or smell 6 points $6, 200. 00 Infertility if the injured person has a child or children 9 points $9, 800. 00 Loss of a kidney 11 points $12, 400. 00 Loss of sight in one eye and partial loss of sight in the other eye 25 points $35, 000. 00 Loss of a hand 30 points $45, 000. 00 An upper limb amputation through or above the elbow 35 points $56, 000. 00 Below the knee amputation of both legs 50 points $93, 800. 00 © Slater & Gordon Limited 2008

Return to work/rehabilitation Workplace injuries The employer/Work. Cover must: • Provide appropriate rehabilitation • Assist the worker to attempt to return to work The worker must: • Participate in appropriate rehabilitation • Make a genuine attempt to return to work • Make reasonable attempts to mitigate their loss © Slater & Gordon Limited 2008 Reputation & Results™

Return to work/rehabilitation Reputation & Results™ Motor vehicle accident claims The insurance company may: • Provide funding for appropriate medical treatment and rehabilitation The injured person must: • Participate in appropriate rehabilitation if made available • Make a genuine attempt to mitigate their loss © Slater & Gordon Limited 2008

Return to work/rehabilitation Medical negligence, occupiers liability claims etc The insurance company may: • Provide medical treatment and rehabilitation The injured person must: • Participate in appropriate rehabilitation • Make a genuine attempt to mitigate their loss © Slater & Gordon Limited 2008 Reputation & Results™

Legal Advice – experienced and reputable personal injury lawyer Reputation & Results™ • An experienced and reputable Personal Injury Lawyer should know all aspects of a statutory scheme and common law obligations and advise their client accordingly. • Lawyers should advise and encourage clients to actively participate in any return to work program and rehabilitation program, which includes attending meetings with their treating team • Lawyers should ensure clients are referred to vocational rehabilitation providers where the insurance company has failed to do anything. • Where there is disagreement between the insurance company and the client’s treating team about their capacities or treatment options, lawyers should guide the client through the dispute resolution process. © Slater & Gordon Limited 2008

Legal Advice – experienced and reputable personal injury lawyer Reputation & Results™ • Many disputes are resolved directly and efficiently with the insurer without the need for litigation. • Lawyers rely heavily upon the views of the treating medical team to formulate their submission for the client. • By actively returning to some work, the parties or a Court can assess the actual capacity for employment rather than a theoretical capacity. © Slater & Gordon Limited 2008

Common Q&A Reputation & Results™ • Should I return to work? A. Yes absolutely, it is part of your rehabilitation, provided you have medical support for your return to work. There are very few cases, apart from people with catastrophic/major injury or those at the end stages of their working life, where a Court will accept a proposition that a person is not suitable for any work. Q. What should I tell my treating doctors, therapists etc? A. There are no tricks to this, you just have to tell your story and be absolutely honest about your pain, limitations and restrictions. © Slater & Gordon Limited 2008

Common Q&A cont… Reputation & Results™ Q. Should I tell doctors, therapists etc about previous injuries and medical conditions? A. The answer is simple – yes. In Queensland, legal claims for compensation are conducted on the basis that both parties lay their cards on the table, face up. There are significant penalties for non disclosure of relevant information but most importantly it will potentially have a significant impact on your claim in that you are likely to be perceived as less than honest. Certainly this is what the insurance company will say. Your credit is central to the claim. Medical and allied medical professionals can decide whether information is or isn’t relevant to a claim. © Slater & Gordon Limited 2008

Common Q&A cont… Reputation & Results™ Q. Tell me what I should and shouldn’t do for my daily activities? A. You should get on with your life to the best of your abilities. You should not put your life on hold. In any event, we do not want to present a person to a Court or insurer who is not trying their best. The only way your claim can be compromised is if you do not give a proper account of yourself to any of the medical practitioners/therapists involved in your care or when undertaking assessments. © Slater & Gordon Limited 2008

Common Q&A cont… Reputation & Results™ Q. What happens if I work, will I get less money? A. You should take up any employment (provided you have a medical clearance) that is offered to you. If you are in receipt of weekly payments from eg Work. Cover, you have a legal obligation to notify them in writing that you have returned to work and your payments will cease. © Slater & Gordon Limited 2008

Common Q&A cont… Reputation & Results™ Q. What happens if I try working but I can’t do it? A. It is better that we present someone who has tried and failed than someone who has not tried at all. You do not want to be subject to cross examination and when asked about your attempts to find work and you answer you have not tried at all – this will be viewed very poorly by the judge. © Slater & Gordon Limited 2008

Importance of early legal assistance Reputation & Results™ • To manage expectations early about what the relevant Insurance Scheme can offer • To investigate early issues around how accidents occur and collect evidence whilst it is fresh and available. • To give direct and early advice about the prospects of actually succeeding with a claim. • To ensure benefits are paid by Insurers in a timely manner, to minimize financial hardship and ensure access to medical services. © Slater & Gordon Limited 2008

Importance of early legal assistance cont… Reputation & Results™ • To facilitate early intervention with Vocational Rehabilitation Providers. • To explain duty of mitigation and statutory obligations in relation to seeking medical treatment and employment. • To assist with Administration Applications where clients do not have capacity. • To ensure other insurance products are investigated – ie lump sum Super/TPD Claims. © Slater & Gordon Limited 2008

Legal Costs – myth v. reality Reputation & Results™ • There is no longer any legal aid available to injured people • NWNF means the client does not pay legal fees until the conclusion of the case • At the end of successful case, the Insurer makes a contribution to the total legal bill – usually 50% to 60% but in some cases more • The injured person contributes to the payment of legal costs from their compensation award • Do not take a percentage of compensation, paid having regard to amount of work done in each matter © Slater & Gordon Limited 2008

Reputation & Results™ Do lawyers and the legal process help or hinder an injured person’s rehabilitation & recovery? ‘Provided a client retains a reputable and experienced lawyer, with a specialist practice, then their rehabilitation and recovery should be enhanced by the legal advice and support they obtain. ’ © Slater & Gordon Limited 2008

Locations Around Australia © Slater & Gordon Limited 2008 Reputation & Results™

Accredited Specialists Reputation & Results™ Employs more lawyers recognised as Accredited Specialists than any other law firm in Australia ► ► ► © Slater & Gordon Limited 2008 More than 5 years experience in a particular area of law High level of professional development Passed a comprehensive written and oral exam Nationally, 49 Accredited Specialists Specialist personal injury lawyers in all Queensland offices 31 languages spoken across the firm.