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 In General Compensation, Public Liability, Road Accidents, Workplace Injuries
Personal injury claims are continuing during COVID-19

The team Polaris are continuing to receive queries from new and existing clients about whether COVID will impact on their personal injury compensation claims; whether this be WorkCover, TAC road accident claims, medical negligence etc.

COVID-19 has had an unprecedented effect on just about every aspect of life for us, and has had a particularly marked effect on people living in Victoria. How we work, travel, exercise and engage with each other has all changed markedly.

Understandably, many Victorians are concerned about the effect the virus will have on the progress of their claims.  They want to know whether COVID will affect their ability to get timely access to justice given the restrictions introduced to combat the spread of the virus.

In mid-September the team at Polaris heard a story about a personal injury law firm closing its doors because its owner said that they couldn’t practice law electronically. And for lawyers stuck working in the 19th century, the challenge of adapting is understandably daunting.

Thankfully, Polaris is proud to be working hard and in innovative ways to minimise the impact of COVID on personal injury compensation claims. We continuously seek new ways to ensure that people injured get access to the benefits and compensation that they need.

While there remains a lot that is unclear, there is some good news for injured Victorians regarding the progression of personal injury claims through the insurance and legal systems. This is particularly so for those whose lawyers are prepared to adapt to new ways of serving their clients.

Let’s take a look at some common points of interaction between injured clients and the legal system to see what has changed, and what has stayed the same.

Engaging with a lawyer

Our physical offices are currently closed to all clients but our teams are continuing to work for our clients as usual. All appointments are now being conducted via telephone or zoom.

Prior to COVID-19, we offered our clients the option to receive written advice by email – this continues.

New and current clients can continue to phone and email our offices as usual with any questions they may have.

Medico-legal appointments

The impact on the health and medical professions has been pronounced, and this has understandably led to slower response times to requests for medical reports and records from treating health practitioners.

In progressing a claim for compensation for injuries, in most cases it will be necessary for you to be assessed by an independent medical expert (called an “IME” or a “Medico-Legal Assessment”). Thankfully, a significant number of medical experts now offer assessments via video.

There are some circumstances where a video assessment is easier than others; for instance, a psychiatric assessment versus an assessment of a person’s loss of vision. In other situations, medico-legal experts can tailor options to ensure the accuracy of the assessment and minimise the amount of contact time with a person to undertake the assessment.

Some medico-legal appointments can be held face-to-face during lockdown

For those appointments which cannot be conducted online, we have now received confirmation from the Victorian Attorney General which clarifies that as at 8 September 2020, a person can attend a face to face medico-legal appointment during lockdown.

Some of our clients have sensibly expressed concern about attending medical appointments in person in the current climate.  For those clients we are happy to reschedule appointments to a later time, and ask only that you let our team know so that we can postpone the assessment without you incurring a non-attendance fee.

If you have been advised of an assessment arranged by an insurer, such as Workcover or the Transport Accident Commission (TAC), Polaris will be happy to contact the insurer to check whether the assessment is still going ahead and to express any health concerns you might have about attending the assessment in person.

We continue to work with insurers in workers compensation and motor accident claims to ensure that the benefits and rights of our clients are not affected by any delays in a client undergoing a medico-legal assessment.

Medical panel appointments

In some cases, our clients are required to be assessed by a Medical Panel regarding a question relating to their injuries.

Unfortunately, it is in this sphere where we have seen the greatest source of delays in progression of matters for our clients.

While the Victorian Government has confirmed that attendance at Medical Panel assessments is permissible under Stage 4 lockdowns, we have continued to see disruption to the progression of assessments by the Medical Panel.

Unhelpfully for injured Victorians facing delays as a result of the Medical Panel, a recent Supreme Court of Appeal decision confirmed although the law generally requires the Medical Panel to make a decision within 30 days of an assessment, a decision made after 30 days is still valid (and even if the parties do not consent to an extension). This gives scope to the Medical Panel to infringe its obligations regarding timely decision-making without recourse.

We continue to liaise with the Medical Panel on individual matters regarding whether assessments of our clients can be performed via Zoom, and to attempt to minimise delays in our clients’ being assessed.

The Medical Panel will advise of dates in the future when the examination will take place.

Mediations and settlement conferences

Mediations and settlement conferences are critical opportunities to resolve a claim for damages for personal injury without the need for a matter to go to a Court hearing.

Settlement conferences and mediations continue to occur via Zoom or Webex, rather than face to face.

Thankfully, large insurers such as the TAC, WorkCover and the VMIA and Avant have responded well to the need to continue to engage in mediations and settlement conferences.

Settlement payments to our clients are now being made electronically rather than with cheques.

On behalf of injured clients, we aren’t seeing any difference in the amounts of compensation being offered or the number of matters resolving at mediations and settlement conferences.

Some of the best outcomes we’ve ever obtained for our clients have occurred via Zoom this year.

Signing documents: electronic vs ‘wet ink’

Many insurers and Courts are now accepting signatures electronically, rather than insisting on “wet ink” signatures.

They have also shown common sense in relation to witnessing formal documents including deeds and affidavits. In many circumstances, they allow a person to swear an affidavit with a person witnessing via video, or even dispensing with the need for a witness.

We are advising clients of the rare circumstances in which a “wet ink” signature is required. We are advocating on behalf of our clients to avoid insurers and Courts insisting on witnesses and hard copies of documents that require a physical signature.

Court hearings

The main change for people injured in Victoria is that for damages claims in the County and Supreme Court, court hearings are proceeding by way of a “judge alone” rather than with a jury of 6 people.

However, in many cases they can be heard remotely with only a judge present, in yet another effort to minimise delays to cases.

Pleasingly, the Victorian Supreme and County Courts moved to remote hearings via digital processes early in the pandemic.

And while some cases were adjourned during the first Victorian lockdown, cases in the County and Supreme Courts are now generally running well via Zoom and Webex and are being heard as scheduled.

Unfortunately, for clients with matters being heard in the Magistrate’s Court or VCAT there continue to be some disruptions. However, extensive efforts have been made to ensure that matters, particularly for injured workers with cases in the Magistrates Court, can be progressed.

The WorkCover Division of the Magistrates’ Court of Victoria at Melbourne has advised that it continues to hear all listed matters on and after 1 October 2020, via Webex.

Contact with insurers and other parties

At Polaris we have seen that WorkSafe Victoria, the Transport Accident Commission (TAC) and most other insurers have successfully transitioned to working digitally and we have not seen significant delays in progressing compensation claims for our clients.

Although COVID-19 has caused huge disruption to many aspects of the lives of Victorians, the legal and insurance professions have taken some overdue steps to rise to the challenges in our new environment.

Legal advice and assistance during COVID-19

We continue to provide our client services during the coronavirus outbreak.

Our team is fully equipped to work remotely whilst still delivering high-quality legal services.

We are working closely with the courts and our colleagues to ensure services to all new and existing clients are delivered efficiently and with as little disruption as possible.

You can contact us by phone or email to arrange a telephone or videoconference consultation.

Phone: 1300 383 825

Email[email protected]

Book a Virtual appointment here: https://polarislawyers.com.au/contact-polaris-lawyers

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