The 2013/14 annual report from the Tasmanian Workers Rehabilitation and Compensation Tribunal provides data about the number of disputes and the percentage of claimants who do not contest what is known as a ‘reasonably arguable case’ finding.
There is a low threshold for a reasonably arguable case finding by the Tribunal, as acknowledged by practitioners on both sides of the liability ‘fence’. An insurer can often readily obtain an independent medical report that might question work causation. In my experience, in many cases lawyers advise their clients that it is best to consent to such a finding and put their efforts into the next step in the legal process to establish liability. The figures suggest that relatively few, however, go on to the next step.
Also, the reality, as indicated by the Tribunal figures, is that the number of disputes are rising both in absolute terms and as a percentage of claims.
The question is why is this occurring.
My medical colleagues tell me that their patients say that often the reason is that to pursue a claim there is a $30K risk. Legal firms quote such a figure as the potential cost if they take on the case, and if there is potential to lose (as there always is) the worker might need to cover that cost.
Understandably many claimants ‘walk away’ from a claim when in other respects they might have a valid claim.
It does seem likely that this jeopardy for claimant workers is an important factor, but there are other potential reasons, for example:
Legal advice that the likelihood of success is poor
The claimant might have returned to work in a short period with nothing to gain by pursuing the claim
It is of concern that many claimants who might be eligible for compensation if their case was properly considered might be prevented from receiving due consideration by the cost barriers imposed by the current system.
While I think it is important that claimants make an informed decision about whether to enter the workers compensation system, it is important that there is equitable access for those that choose this option. See my earlier blog posts – Tough Love and the Update on Tough Love
It would be interesting to obtain accurate information about why claimants ‘walk away’ by surveying those claimants who do and see whether the trend of increasing disputes continues when the next annual Tribunal report is released.
I am interested to know what is happening in other jurisdictions. Comments would be welcomed, particularly to get an insurers perspective on this issue.