One of the most important features of personal injury claims in Queensland is that opposing parties must disclose relevant documents to each other, even if a document is harmful to that party’s case. This is colloquially known as the “cards on the table” approach. It is designed to facilitate the early resolution of claims by highlighting the important issues early, and to avoid a situation where parties are surprised by new evidence that is only revealed at trial.
The obligation to disclose relevant documents in workers’ compensation claims is contained in section 279 of the Workers’ Compensation & Rehabilitation Act 2003 (WCRA). Section 279 is titled “Parties to cooperate” and requires parties to give each other copies of “relevant documents” about the worker’s injury, the circumstances of the event resulting in injury, and the worker’s prospects of rehabilitation. In practice, documents about the circumstances of the event will often include things such as incident reports, investigation reports and witness statements. Documents about the worker’s injury may include hospital and ambulance records, GP records, allied health records, treating specialist records and medico-legal reports.
The documents that must be disclosed are relevant documents that are in the possession of a party. Documents can also be “reasonably required” by WorkCover from the worker’s employer. Under section 280 of the WCRA an employer must cooperate fully with WorkCover and give it all information and access to documents in relation to the claim that WorkCover reasonably requires. There can be financial penalties if an employer fails to cooperate.
Disclosing additional information
Section 279 is not restricted to documents. It also requires parties to give “information reasonably requested” by another party about the circumstances of the event resulting in injury, the nature of the injury, impairment or financial loss resulting from the injury, medical treatment and rehabilitation received from the worker’s employer or insurer, and any applications for compensation made by a worker for any injury resulting from the said event. The range of issues on which information can be requested is very broad. Whether a request is “reasonable” depends on the facts and circumstances of the case, however the relevance of the request and the resources needed to meet the request could be important factors to consider.
An “information request” usually takes the form of a list of questions given to another party who must provide answers to the questions. The answers might be provided in correspondence or in a Statutory Declaration, however there is no provision under section 279 to force a party to provide the answers in the form of a Statutory Declaration. Documents must be provided to the other party within 21 business days of receipt, and information must be provided within 21 business days of the request.
WorkCover’s lawyers will determine what information must be disclosed and will liaise with the employer about requests for information given by another party. It is important that the employer gives their full cooperation and that all relevant documents and information are located and provided promptly. This will help all parties to assess the strengths and weaknesses of their cases and maximise the chances of reaching a mutually acceptable conclusion of the claim before significant costs are incurred in preparation for a trial.
Article by Tony Rosenthal (Partner) and Daniel Sullivan (Associate).
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