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| 10 May 2019Tips and Tricks for Young Players
2019 NEWCASTLE SEMINAR
Tips and tricks for young
(and old) players
Fiona Seaton
Principal Lawyer, ILARS
10 May 2019
| 10 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
▸ 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
| 10 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 worker’s claim is disputed
• Reports - treating GPs, specialists, includes test reports
Worker’s access to information
| 10 May 2019Tips and Tricks for Young Players
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)
| 10 May 2019Tips and Tricks for Young Players
▸ Employer/insurer must provide any relevant report to a worker where a decision made to
dispute liability, discontinue or reduce weekly payments by s78 notice or s287A review,
whether or not it supports the reasons for the decision
▸ Reports – medical, certificates of capacity, 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 to life or
health of worker or any other person, they may supply report to treating doctor or lawyer
▸ Section 78 notice must identify all reports to which clause 41 applies relevant to the
decision whether or not they support the reasons for the decision; clause 38 Workers
Compensation Regulation 2016
Worker’s access to information – clause 41 Workers Compensation Regulation 2016
| 10 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 days
Government Information (Public Access) Act 2009 (GIPA)
▸ limited - applies to non-health information held by the NSW Government (eg TMF) in relation to
public sector employees
Privacy 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 in PIPA)
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
| 10 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
| 10 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
| 10 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
▸When is the best time?
▸Impairment is ‘god’
Whose claim is it anyway?
| 10 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
| 10 May 2019Tips and Tricks for Young Players
▸ 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
| 10 May 2019Tips and Tricks for Young Players
Insurers are required to give notice of the following
decisions from 1 January 2019:
- To dispute liability
- To discontinue or reduce weekly compensation
▸ What happens in other circumstances?
▸ Not all work capacity decisions are contained within a section 78 notice
▸ What if your client disagrees?
WCD and section 78 of the WIM Act 1998
| 10 May 2019Tips and Tricks for Young Players
Notice of a decision involving both a liability dispute and a discontinuation or reduction of weekly compensation may be combined into a single notice
▸ Is it a liability dispute or a WCD or both? Read carefully
▸What notice provisions apply? Check against all arms of the notice provision
▸What if two notices are issued? Focus on the decision type to work out the notice period
▸ Is a Work Capacity Decision necessarily a dispute?
Notice and section 78 of the WIM Act 1998
| 10 May 2019Tips and Tricks for Young Players
Insurer must not discontinue or reduce payments of weekly
payments to a worker unless the required period of notice
has expired
▸ Work Capacity Decision – 3 months if the worker has received payments
for a continuous period of at least 12 weeks
▸ Liability Decision
▸ payments < 1 year – 2 weeks
▸ payments > 1 year – 6 weeks
▸ What if the notice period hasn’t expired?
Section 80 of the WIM Act 1998
| 10 May 2019Tips and Tricks for Young Players
Referral to the WCC of a WCD dispute to discontinue or reduce payments operates to stay the decision
▸ Prevents the taking of action by an insurer
▸ Does not apply to an internal review under s287A
▸ Must be referred before expiry of notice period
▸ What does this mean for you?
Section 289B of the WIM Act 1998
| 10 May 2019Tips and Tricks for Young Players
Worker may request an internal review
▸ Insurer must conduct review and notify within 14 days
▸ May be made at any time before the referral to the WCC
▸ No stay applies to internal reviews
▸ What does this mean for you?
Section 287A of the WIM Act 1998
| 10 May 2019Tips and Tricks for Young PlayersTIPS AND TRICKS FOR
YOUNG PLAYERS
10 May 20192019 NEWCASTLE SEMINAR
Principal Lawyer, ILARS
Fiona Seaton