Tips and tricks for young (and old) players and Tricks for Young Players | 24 May 2019 Standard 2 –Worker…

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  • | 24 May 2019Tips and Tricks for Young Players

    2019 WIRO REGIONAL SEMINAR | WOLLONGONG

    Tips and tricks for young (and old) playersFiona SeatonPrincipal Lawyer, ILARS

    24 May 2019

  • | 24 May 2019Tips and Tricks for Young Players

    Revised ILARS Funding Policy | Counsel Pre-approval no longer required to brief Counsel when ILARS-funded

    matter listed for con/arb Counsel must be an Approved Legal Service Provider New ARD $1,400 brief fee payable Provide WIRO with information about the listing:

    - date ARD registered (A copy of the WCC Timetable is preferred) - Form type (1, 2, 7 etc)- teleconference date- date of con/arb - name of barrister

  • | 24 May 2019Tips and Tricks for Young Players

    Statutory provisions regulation making powers

    Section 73 1998 Act - Regulations may require an insurer to provide copies of reports to workers or their lawyers obtained in relation to claim.

    Reports - include investigators, rehab providers and assessment of ability to earn reports

    Section 119 1998 Act - Regulations may require employer/insurer to provide worker or their lawyer with reports from medical examinations at direction of employer

    Section 126 1998 Act - Regulations may require copies of certain medical reports to be supplied to worker, if the workers claim is disputed Reports - treating GPs, specialists, includes test reports

    Workers access to information

  • | 24 May 2019Tips and Tricks for Young Players

    Report cant be used to dispute liability to pay/continue to pay or reduce compensation

    Not admissible in WCC proceedings May not be disclosed to AMS or Appeal Panel

    s73(3)

    s119(6)

    s126(3)1998 Act

    Failure to provide report (failure to comply with regulation)

  • | 24 May 2019Tips and Tricks for Young Players

    Only where a decision made to dispute liability, discontinue or reduce weekly payments (section 78 or section 287A Notice)

    Employer/insurer must provide any relevant report to a worker whether or not itsupports the reasons for the decision

    Reports: medical, WCOC, clinical notes, investigators, rehabilitation providers,health service providers, reports containing information relevant to claim

    Unless in employer/insurers opinion supplying the report poses a serious threat tolife or health of worker or any other person, then report to be supplied to treatingdoctor or lawyer

    Section 78 notice must identify all reports to which clause 41 applies relevant tothe decision whether or not they support the reasons for the decision: clause 38,WCR 2016

    Workers access to information clause 41 WCR 2016

  • | 24 May 2019Tips and Tricks for Young Players

    Standard 2 Worker access to personal information, SIRA Standards of practice Principle: workers will be provided with convenient/timely access to personal/health information in

    accordance with relevant privacy and workers compensation laws; Expectation: insurers must promptly respond to any request by worker/lawyer for information

    contained in claim file within 10 working daysGovernment Information (Public Access) Act 2009 (GIPA) limited - applies to non-health information held by the NSW Government (eg TMF) in relation to

    public sector employeesPrivacy Act 1988 (Cth) If an entity holds personal information about an individual they must on request give the individual

    access to the information; Principle 12.1, Australian Privacy Principles ?not SIRA or TMF (replicated in NSW Privacy and Personal Information Protection Act 1998)

    Health Records and Information Privacy Act 2002 (NSW) (HRIPA) Organisation to provide access to health information to an individual on request; Principle 7, Health

    Privacy Principles

    Workers access to information Other access

  • | 24 May 2019Tips and Tricks for Young Players

    A basic statement is the best form of information to ground a grant of funding

    Not required to be signed Information can be provided within the body of the Application form Whats required? Identification information: full name, DOB, current address Name of employer at time of injury Date of injury Mechanism of injury Any information that assists in understanding the nature and purpose of

    grant requested

    Worker Statement for an ILARS Application

  • | 24 May 2019Tips and Tricks for Young Players

    Keep in mind requirements of the Workers Compensation Commission when you begin taking a statement, usually no oral evidence

    WCC Rules 2011 Rule 10.3 Material to be lodged in proceedings a signed written statement of the evidence to be given by the worker

    WCC Practice Direction No 3 - Information, documents and other evidence 13. Form of statements - should include work history, circumstances of injury, medical treatment and summary of ongoing effects

    Applicant Statements in WCC Proceedings

  • | 24 May 2019Tips and Tricks for Young Players

    Psychiatric impairment rating scale (PIRS): NSW workers compensation guidelines for the evaluation of permanent impairment 4th edition

    6 Tables - Self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, employability

    Ballas v Department of Education (State of NSW) [2019] NSWSC 234 categories: general, generic and overlapping, discretion of AMS based on history taken and clinical examination

    Statement with detailed chronology and history critical

    Psychological Injury Statements

  • | 24 May 2019Tips and Tricks for Young Players

    One section 66 claim on or after 19 June 2012

    Only one assessment of permanent impairment on or after 19 June 2012

    Only one Medical Assessment Certificate

    When is the best time?

    Impairment is God

    Whose claim is it anyway?

  • | 24 May 2019Tips and Tricks for Young Players

    Section 59A 0% 10% WPI medicals for 2 years post weekly payments, 10% - 20% WPI medicals for 5 years, over 20% WPI medicals for life

    Section 60AA 15% WPI for long term domestic assistance Section 39 - after 260 weeks must have 20% WPI to continue receiving

    weekly payments Work injury damages claims - 15% WPI Each threshold occurs at different milestones in the life of a claim All the above has to be accommodated in one assessment (s322A 1998

    Act)

    Important Considerations affecting the timing of the section 66 Claim

  • | 24 May 2019Tips and Tricks for Young Players

    Centrelink payback and preclusion period affecting the workers entitlement to future benefits

    The threshold for future Social Security benefits Medicare and the quantum of any payback What effect will any of the terms of settlement have on private health

    insurance?

    Will the settlement affect benefits received under an income protection policy?

    Rights arising from TPD, superannuation and life insurance policies

    Important considerations affecting resolution

  • | 24 May 2019Tips and Tricks for Young Players

    A medical dispute may be referred for assessment to an Approved Medical Specialist, for a permanent impairment dispute only if liability is not in issue: ss321, 321A 1998 Act

    A medical assessment certificate is conclusively presumed correct for WPI and the deduction for previous injury or pre-existing condition/abnormality: s326 1998 Act

    The Commission will issue the referral to the AMS to the parties, any deficiency must be raised in writing: WCC Practice Direction No 11 Permanent impairment disputes

    Where you have a referral to an AMS: Carefully read the referral consider the purpose of the referral Do you want to agree on the AMS? Is there a conflict of interest? 7 days Does the referral include all injuries/body systems to be assessed? Is all the evidence before the AMS? Should causation, body systems, aggregation or apportionment go to an Arbitrator first? Consider limiting the issues to avoid determinations of fact by the AMS

    Approved Medical Specialist Referrals

  • | 24 May 2019Tips and Tricks for Young Players

    Appealing medical assessment certificates Parties can appeal a MAC regarding WPI and deduction for previous injury or pre-

    existing condition/abnormality; s327 1998 Act

    Grounds for appeal: deterioration of condition, new relevant information, incorrect criteria and/or demonstrable error; s327(3)

    Incorrect criteria/demonstrable error appeal within 28 days of MAC, Form 10/10A with submissions, hearing or reexamination of worker required?

    Registrar must be satisfied at least one ground made out; s327(4)

    Judicial review on basis of error of law; s69 Supreme Court Act 1970

    No appeal once Certificate of Determination or Complying Agreement

    Registrar may issue amended MAC if an obvious error; s325 Registrar can refer to AMS for reconsideration as alternative to appeal; s329

  • | 24 May 2019Tips and Tricks for Young Players

    Registrar refers to Appeal Panel of 2 AMSs and 1 Arbitrator: s328 1998 Act

    MAPs can also determine causation/aggregation of injuries

    Has the MAP identified the error referred to? If so MAP can correct any other errors; Gatt v State of NSW

    If the issues dealt with by the MAP are contained in the evidence before it, no requirement to ask parties for submissions: Gatt v State of NSW

    If MAP considers important, new, disputable material that is determinative with adverse consequences they should request additional submissions: Pascoe v Mechita

    Agreeing to an appeal on the papers does not waive right to make submissions on a new matter relied on by MAP, MAPs are experts and can apply