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Published: 07 February 2018
Author: Tom O'Grady

Unnecessary delays by insurers are making injured workers wait

Injured workers are entitled to receive information that is collected about their claim in a timely manner from insurers and self-insurers. This includes things like claim forms, letters to treating health practitioners (and any subsequent reports by treating health practitioners), and reports from the insurer’s or self-insurer’s independent doctors.

In fact, Section 9 of the Workplace Injury Rehabilitation and Compensation Act 2013 (colloquially, ‘the WIRC Act’) stipulates that any request for information from the insurer’s or self-insurer’s file be provided to the person who has made a claim for compensation, including their legal representatives with a signed authority, within 28 days.

It is highly frustrating for clients and for us that this requirement is now being ignored in some situations, and for specious reasons.

On behalf of clients, we routinely request information from insurers and self-insurers to ensure we are fully informed about our client’s claims and cases. However, we find clients are usually most interested in the reports that are produced following an examination by one of the insurer’s independent doctors. Our clients, or any injured worker, for that matter, are entitled to be provided with a copy of that report within 28 days of their request.

Unfortunately, we are hearing from our clients recently that this is not happening.

What factors might delay or prevent the provision of the reports to injured workers?

There are some circumstances where insurers and self-insurer’s may refuse to provide information from their file to injured workers or their representatives. They may refuse to provide information if they are satisfied that:

  1. The information is exempt information (information of a kind which would not be provided in any ordinary freedom of information request pursuant to the Freedom of Information Act 1982);
  2. The same information has been given to the injured worker (or their representative) in the 12 months prior to the request or has previously been refused under the Act;
  3. The information is health information which would pose a serious threat to the life or the health of the person if the information were to be given to that person. 

We are hearing from our clients that insurers are refusing to provide these reports directly to them, preferring to give the reports to their doctors instead for them to provide the injured worker with a copy.

There are some circumstances where for example someone is likely to be psychologically psychiatrically affected by the provision of the information, and we accept that in those circumstances that would be the proper channel for that worker to access that information to ensure that the worker’s health is not adversely affected. As many (if not, most) cases are not like this, there is no justification for this means of channeling client information to have become the norm, which it has done among insurers and self-insurers. 

The flip side of this coin is that workers are being forced to wait longer than 28 days to find out exactly what the insurers’ independent doctors have said about them and their injuries.

Insurers, on occasions, do provide clients with a brief excerpt from the report but many of the comments plucked from the reports by case managers are out of context and in many cases do not provide clients with meaningful understanding of what the doctor has said about them. This, more often than not, is a source of anxiety for clients concerned about their entitlements being prematurely terminated or altered.

It’s clear the WorkCover Authority takes workers’ privacy seriously and understands the sensitivity of the information it and its agents collects about workers in managing these claims. However, there must be a better balance between protecting injured workers’ privacy and ensuring that injured workers are provided with timely and trouble-free access to information about them.

From speaking with our clients, striking a better balance would improve the workers’ overall claim experience which is already made difficult by the inherent nature of their situations.