TRAPS FOR YOUNG PLAYERS - Home | WIRO · Tips and Tricks for Young Players | 10 May 2019 Insurers are required to give notice of the following decisions from 1 January 2019:-To dispute

| 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


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


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)


▸ 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


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


▸ 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

▸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


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


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


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


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


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

[email protected]

Fiona Seaton

mailto:[email protected]

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TRAPS FOR YOUNG PLAYERS - Home | WIRO · Tips and Tricks for Young Players | 10 May 2019 Insurers are required to give notice of the following decisions from 1 January 2019:-To dispute