ByLawyers News and Updates

1 July updates – All states

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1 July updates are a big focus for By Lawyers. This is because many Commonwealth and state legislative instruments provide for scheduled indexing of relevant monetary amounts and increases in government fees and charges.

These updates can include court filing fees, lodgement fees for property dealings, minimum weekly compensation amounts for Workers Compensation and various fines.

By Lawyers always monitor these changes for our subscribers. Each year we ensure that our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for legislative indexing and increases which occur regularly at other times. These include 1 January changes and also other specific dates prescribed by some statutes.

The 1 July updates have been applied, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Criminal;
  • Litigation;
  • Family;
  • Estates;
  • Injuries; and
  • Employment.

Stay updated with By Lawyers guides and precedents. Happy new financial year!

Out of time claims – Workers Comp – NSW

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Out of time claims under the Workers Compensation Act 1987 were considered in the recent Supreme Court decision of Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102.

Section 151D (2) of the Act provides that common law claims must be brought within 3 years of the date of injury. Out of time claims require the leave of the court in which the claim is brought. In Hole, Button J granted leave to commence proceedings some four years out of time on the basis that the plaintiff had adequately explained the delay.

Interestingly, the essence of the explanation was the plaintiff’s extended engagement in the claims process under the Workplace Injury Management and Workers Compensation Act 1998. The Court noted that: ‘…there is a whole structure, external to the Court in which litigation is to commence, in which one must engage in an effort to have the matter resolved away from Court.’

In that context, the Court also noted that this was not a case where anybody involved in the litigation was ‘taken by surprise‘, or prejudiced by the delay.

In its consideration of the matter the Court followed the principles relating to a grant of leave for out of time claims set out in Smith v Grant [2006] NSWCA 244.

These helpful cases have been added to the By Lawyers Workers Compensation (NSW) Guide. A link to s 151D has also been added to the Retainer Instructions precedent on the matter plan in that Guide.

Workers Compensation – NSW

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The By Lawyers Workers Compensation – NSW publication has been updated.

The final provisions of the Workers Compensation Legislation Amendment Act 2018 commenced on 21 October 2019.

The amendments include the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings.

The new Schedule 3 to the Workers Compensation Act 1987 provides the method for determining pre-injury average weekly earnings. Insurers and workers may now agree on a figure.

The relevant section of the By Lawyers Workers Compensation – NSW commentary has been updated accordingly.

Workers Compensation guide – NSW

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The By Lawyers Workers Compensation guide has received an extensive author review. The matter plan has been amended in accordance with the commentary updates. This reflects recent amendments to the Workers Compensation Act 1987. New precedents have also been added.

The following are excerpts from the updated commentary in our NSW Workers Compensation guide:

Interaction with the Motor Accident Injuries Act 2017

For clients who have suffered injuries which require significant ongoing treatment into the future, or who have an established entitlement to payment of ongoing weekly income benefits, the value of ongoing and future benefits must be considered and explained to the client so that instructions to finalise the MAIA claim and therefore finalise all future workers compensation benefits are given on a fully informed basis. The advice given and the instructions received must be fully recorded in a file note and the client required to sign a written authority to settle on that basis.

There is a precedent Authority to settle available on the matter plan.

Entitlement to weekly benefits

The extent of any entitlement to weekly benefits is assessed with regard to the capacity of the injured worker to undertake some form of employment and is reviewed by a twenty-eight-day cycle. This entitlement to weekly benefits cannot be regarded as fixed and final until retirement age even where the worker has suffered a serious injury.

An injured worker is required to provide to the insurer a Certificate of Capacity from the treating doctor. This certificate is required to contain the opinion of the doctor about work capacity even where work which is stated to be within the capacity of the injured worker is not available.

The insurer is not required to accept the treating doctor’s opinion and may adopt the opinion of its own doctor.

The insurer is required to make a Work Capacity Decision based upon available, proper information.

Precedent letters to the client’s treating and specialist doctors, requesting the doctor’s opinion about work capacity, are available on the matter plan.

Workers Compensation amendments – NSW

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The next tranche of workers compensation amendments under Schedules 1 and 2 of the Workers Compensation Legislation Amendment Act 2018 commence 1 January 2019, providing for the abolition of the administrative system of dispute resolution and reinstatement of the jurisdiction of the Workers Compensation Commission to determine disputes and make determinations of permanent impairment.

There is no commencement date yet for Schedule 3 of the amending Act, which provides for the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings, with new Schedule 3 to the Workers Compensation Act 1987 providing the method for determining PIAWE and allowing insurers and workers to agree on the figure for PIAWE.

Provisions removing limitations on workers injured in motor vehicle accidents obtaining statutory benefits for treatment and care under that Act where their entitlement to workers compensation has ceased, or where they recover damages from the employer in respect of the injury, have already commenced.

The By Lawyers Workers Compensation (NSW) publication has been updated to deal with these amendments.

Workers Compensation and Motor Accident changes – NSW

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The Workers Compensation Legislation Amendment Act 2018 amends both the Workers Compensation Act 1987 and the Motor Accident Injuries Act 2017.

Some provisions of the amending Act have now commenced, namely those removing limitations on workers injured in motor vehicle accidents obtaining statutory benefits for treatment and care under that Act where their entitlement to workers compensation has ceased, or where they recover damages from the employer in respect of the injury.

Schedules 1, 2 and 3 of the amending Act, which are yet to commence, provide for:

  • the abolition of the administrative system of dispute resolution and reinstatement of the jurisdiction of the Workers Compensation Commission to determine disputes and make determinations of permanent impairment;
  • the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings, with a new Schedule 3 to the Workers Compensation Act 1987 providing the method for determining PIAWE and allowing insurers and workers to agree on the figure for PIAWE.

The By Lawyers NSW Workers Compensation and Motor Vehicle Accident publications have been updated to deal with these amendments.

Workers Compensation NSW

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DECEMBER 2016

New precedents were added including an Application for review of work capacity decision and a Work compensation referral sheet

OCTOBER 2016

The commentary and the retainer instructions were updated to reflect the new monetary amounts.

The Costs Agreements were updated to reference the time limit for bringing costs assessment included total estimate of legal costs section with provision for variables and included authority to receive money into trust.

The Disputes section was improved, with fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.

A new precedent was included Application for merit review by SIRA.

SEPTEMBER 2016

Amendments were made to precedents and commentaries to reflect new Workers Compensation Regulation 2016 and updated links to the regulation.

Workers Compensation QLD

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Workers Compensation

OCTOBER
  • Costs Agreements
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
AUGUST
  • Commentary updated to comply with the National Injury Insurance Scheme (Queensland) Act 2016. The purpose of the Act is to ensure that anyone who sustains serious personal injuries in a motor vehicle accident in Queensland, may be eligible to receive necessary and reasonable lifetime treatment care and support under the National Injury Insurance Scheme.
  • Reference to National Injury Insurance Scheme added to the following precedents: Initial letter to applicant client all claims with costs disclosures, Retainer instructions, Initial letter to applicant client lump sum claims with costs disclosures, and Letter to plaintiff with enclosures.
APRIL
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
FEBRUARY 
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.
  • Recent changes to common law threshold – Summary of the recent legislative changes brought in by the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 included in the Workers Compensation QLD publication commentary.

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