A pre-filing statement is a formal legal document required under the Workers Compensation Act 1987 (NSW) before you can commence a Work Injury Damages claim in the Personal Injury Commission. Without it, your claim cannot proceed. Withstand Lawyers prepares these documents for injured workers across NSW on a no win, no fee basis.

What Is a Pre-Filing Statement?

A pre-filing statement (sometimes called a “statement of claim”) is a structured document that sets out the essential details of your Work Injury Damages claim before formal proceedings begin. It is served on the respondent — your employer or their workers compensation insurer — who then has 28 days to file a response.

The pre-filing process is designed to encourage early settlement without the need for a full hearing. In practice, many Work Injury Damages cases resolve at or shortly after this stage, avoiding the cost and delay of a contested hearing.

Who Needs to File a Pre-Filing Statement?

You must file a pre-filing statement if you are pursuing a Work Injury Damages claim in NSW. To be eligible, you must:

• Have suffered a work-related injury or illness caused or materially contributed to by your employer’s negligence
• Have been assessed with a whole person impairment (WPI) of at least 15% (or 15% permanent impairment for hearing loss claims)
• Be within the 3-year limitation period from the date of injury (or date of death for dependants)
• Have your claim registered with the Personal Injury Commission (PIC)

If your WPI is below 15%, you are generally not eligible to pursue a Work Injury Damages claim at all. If you haven’t yet had a WPI assessment, contact us — we can advise whether you are likely to meet the threshold before spending time on a claim.

What Must the Pre-Filing Statement Include?

Under the Workers Compensation Regulation, a valid pre-filing statement must include the following:

• Particulars of the worker: Full name, date of birth, address, and occupation at the time of injury
• Particulars of the employer: Name and address of the respondent employer
• Description of the injury: How the injury occurred, the date and location, and the body parts or conditions affected
• Medical evidence: Details of medical treatment received and the prognosis
• Impairment assessment: Reference to the WPI assessment establishing the 15% threshold
• Particulars of negligence: Specific allegations of how the employer failed in their duty of care — the single most important element
• Damages claimed: Breakdown of economic loss (past and future), non-economic loss (pain and suffering), and any other heads of damage
• Supporting documents: Medical reports, wage records, expert evidence as available

The negligence particulars are the most critical and most often contested part of the statement. Vague or generic allegations (“the employer failed to provide a safe workplace”) are unlikely to result in a favourable settlement. Specific, well-evidenced particulars put maximum pressure on the insurer.

The Pre-Filing Process: Step by Step

1. Eligibility check: Confirm you meet the 15% WPI threshold and the limitation period has not expired
2. WPI assessment (if not yet done): Arrange an assessment with an approved medical specialist (AMS) through the Personal Injury Commission
3. Gather evidence: Medical records, wage and employment records, expert workplace safety reports where applicable
4. Draft and serve the pre-filing statement: Filed with the Personal Injury Commission and served on the respondent
5. 28-day response period: The respondent (employer/insurer) must file a response within 28 days
6. Conciliation/arbitration: If the matter is not resolved after the exchange of statements, it proceeds to a dispute resolution conference or arbitration hearing at the PIC

How Long Does the Pre-Filing Process Take?

From the time the pre-filing statement is served, the respondent has 28 days to respond. In practice, the full process from initial instruction to resolution typically takes between 6 and 18 months, depending on:

• Whether a WPI assessment has already been completed
• The complexity of the negligence allegations
• The insurer’s willingness to negotiate
• Whether the matter proceeds to a PIC hearing or settles beforehand

Cases where the negligence is clear and well-documented often resolve at the pre-filing stage itself, before any hearing is needed.

Common Mistakes in Pre-Filing Statements

Poorly drafted pre-filing statements routinely result in lower settlements or contested hearings that could have been avoided. The most common errors we see include:

• Generic negligence allegations — failing to identify specific workplace practices, equipment failures, or management decisions that caused the injury
• Undervalued damages — not including all heads of damage, particularly future economic loss for younger workers
• Missing medical evidence — serving the statement before all relevant specialist reports are available, weakening the evidentiary foundation
• Incorrect WPI threshold — relying on an impairment assessment from a different body system or one that doesn’t count toward the relevant threshold
• Limitation period errors — not accounting for the correct date from which the 3-year period runs

Frequently Asked Questions

Technically no — but practically, yes. The pre-filing statement is a formal legal document and the quality of the negligence particulars directly determines the settlement value of your claim. Insurers are represented by experienced lawyers. You should be too.

If the respondent fails to file a response within 28 days, you may apply to the Personal Injury Commission to proceed with the claim. The failure to respond can be treated as a denial of the allegations, and the matter can proceed to arbitration.

Yes. Many Work Injury Damages claims are resolved through informal negotiation before the pre-filing statement is formally served. However, filing the statement is often the catalyst that prompts insurers to make a serious settlement offer.

A claim form is the initial document notifying your employer and the insurer that you have been injured and are making a workers compensation claim. A pre-filing statement is a much more detailed legal document prepared later, specifically for Work Injury Damages (common law damages) proceedings. They are different documents at different stages of the process.

A successful Work Injury Damages claim can recover: past economic loss (wages lost to date), future economic loss (loss of earning capacity going forward), non-economic loss (pain, suffering and loss of enjoyment of life — only if WPI is 15% or more), and out-of-pocket expenses. Workers compensation statutory benefits already received may be deducted from any lump sum.

How Withstand Lawyers Can Help

Withstand Lawyers has prepared pre-filing statements for Work Injury Damages claims across all industries in NSW — construction, healthcare, manufacturing, transport, and more. We handle every aspect of the process:

• Assessing your eligibility including WPI threshold and limitation period
• Coordinating independent medical and expert evidence
• Drafting a comprehensive, properly particularised pre-filing statement
• Negotiating directly with the insurer’s lawyers
• Running your matter to arbitration if settlement is not achieved

We act on a no win, no fee basis for Work Injury Damages claims. You pay nothing unless your claim is successful.