Download pdf - Tips and tricks for young (and old) players and Tricks for Young Players | 24 May 2019 Standard 2 –Worker access to personal information, SIRA Standards of practice Principle: workers

| 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


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


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 worker’s claim is disputed• Reports - treating GPs, specialists, includes test reports

Worker’s access to information


▸ Report can’t 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)


▸ 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/insurer’s 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

Worker’s access to information – clause 41 WCR 2016


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

Worker’s access to information – Other access


▸ 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▸ What’s 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


▸ 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


▸ 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


▸ 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?


▸ 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


▸ Centrelink payback and preclusion period affecting the worker’s 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


▸ 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


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 re–examination 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


▸ 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 common sense generalisations to a worker: Pascoe v Mechita

▸ Judicial review where error of law on face of record; s69 Supreme Court Act 1970

Medical Appeal Panels

| 24 May 2019Tips and Tricks for Young PlayersTIPS AND TRICKS FOR

YOUNG PLAYERS24 May 20192019 WIRO REGIONAL SEMINAR | WOLLONGONG

Principal Lawyer, ILARS

[email protected]

Fiona Seaton

mailto:[email protected]