As well as acting for Claimants Morgan McManus also act for Respondents in the defence of Personal Injury Claims. Below, we outline some of the factors which should be taken into account by an Employer where he is faced with a Claim by an Employee in respect of a workplace accident and he has been notified by the InjuriesBoard.ie thata Claim has been submitted.
Since 2004, all employers’ liability claims must be notified to the InjuriesBoard.ie before any court proceedings can be issued. The employer will then be asked whether he wishes to consent to the InjuriesBoard.ie assessing the claim. If he agrees, the InjuriesBoard.ie will begin an assessment process which will usually – though not always – result in an Award being made. At that point, either party may accept or refuse the award. Only if both parties accept the award is the claim settled. If the employer consents to assessment, he must pay a fee of €900, plus a fee towards a medical report. If he does not consent, then court proceedings can be issued.
A number of factors must be taken into account before deciding whether or not to consent. First, what type of accident was it? If you feel that your company was not at fault, that another party may have some liability or that the employee is wholly or partially responsible for the accident, then you should not consent to assessment. The InjuriesBoard.ie awards damages on a ‘full liability’ basis, so you need to be certain that your company is willing to accept full responsibility.
There may however be cases where, although you do not accept full responsibility, it is in your interests to let the Case go before the InjuriesBoard.ie; for instance where the Case is of little value and you want early settlement. If liability is not disputed by the company, then the obvious option would appear to be to consent to assessment and pay the fee. However, not all Claimants accept the InjuriesBoard.ie offer. Therefore, in some instances, allowing the Claim to proceed to the InjuriesBoard.ie could result in ultimately delaying the final resolution of the Claim.
A typical InjuriesBoard.ie claim could proceed as follows :
- It will probably take at least a month for the Claimant to file his InjuriesBoard.ie Application and for it to be accepted as valid by PIAB;
- Under Section 13 of the Act, the Respondent has 90 days (3 months) to decide whether to allow the InjuriesBoard.ie deal with the Claim. Experience shows that this full period is usually availed of by the Respondent’s insurers to enable them investigate the circumstances of the accident;
- While Section 49(2) of the Act states that it shall be “the duty of the Board to ensure that every assessment is made within a period of 9 months”, Section 49(4) recites that where “it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of the relevant claim concerned, to make an assessment in respect of it within the period referred to in subsection (2), the Board shall, by notice in writing served on the Claimant and the Respondent or Respondents before the expiration of that period, inform each of them of the reasons why it would not be possible or appropriate (as the case may be) to make the assessment within that period and shall specify the date before which the Board intends that the assessment shall be made; the date so specified shall not be a date that falls more than 6 months after the end of the period referred to in subsection (2)”.
- Therefore, already we have a possible delay of up to 19 months in the InjuriesBoard.ie process;
- However, Section 49(6) then recites that “if the assessment is not made before that date, then unless the Claimant consents in writing to the Board’s continuing to deal with the matter, it shall be the duty of the Board, as soon as may be after that date, to issue to the Claimant” an Authorization. That is, there are circumstances in which this 19 month period could be extended further with the consent of the Applicant;
- The InjuriesBoard.ie could then, after this period, issue an Award which might be rejected by either the Claimant or Respondent or both;
- The Claimant, in the meantime may not be making any meaningful recovery or efforts to get back to work as he is still awaiting the assessment of the InjuriesBoard.ie and his Claim has not yet come under the supervision of the Court;
- The Claimant (or his Solicitor) will not be entitled to get updated Medical Reports during this period (which might possibly enable the Solicitor to advise his client how to mitigate (reduce) his loss – as the InjuriesBoard.ie only allows the procurement of one Medical Report by the Claimant during the InjuriesBoard.ie process.
In addition, many claims are rejected by the InjuriesBoard.ie before an award is made because, for instance, they relate to psychological injury, with which it is not equipped to deal, or a claim may not be ready for assessment within the statutory nine-month timeframe. In those circumstances, the fee will be effectively wasted and the company will also end up paying higher costs, because the Claimant will be entitled to his costs for going through the whole PIAB process, if he is successful in court proceedings.
There are also many cases, particularly where the employer suspects that the Claimant is making a fraudulent or exaggerated Claim, that it would be in the best interests of the employer to allow the employee to issue Proceedings without delay and thus bring the Claimant under the obligation to file a Verifying Affidavit with regard to each of his Pleadings and comply with the many other onerous obligations which now apply under the Civil Liability and Courts Act 2004. Morgan McManus are happy to advise further on this issue and approach.
The best advice is to try and assess the injury objectively. Many employers attempt to diagnose an employee’s injury themselves, but this generally leads to an undervaluation, so it is always best to have it reviewed by an independent medical expert. If it is a relatively minor, short-term injury, it’s probably worth letting the InjuriesBoard.ie deal with it. Otherwise, the safest option is to refuse to consent to assessment and save expense and delay.
In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.