Insurance Litigation: Commentaries Update

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Nick Sweeney
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Tribunal decision – whole person impairment assessment for a psychiatric injury


H v The State of Tasmania (Department of Health & Human Services) (Ref No. 1151/2015) TASWRCT 27

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Background

This is the first Tribunal decision relating to a psychiatric impairment assessment.

Although claims for psychological conditions are commonplace, it is unusual for those claims to give rise to Whole Person Impairment (WPI) assessments.  This is in part because a claimant is not entitled to a lump sum payment in accordance with section 71 unless they have a 10% WPI as compared to a 5% WPI for physical injuries.

This case related to a worker who on any view had suffered a very significant psychiatric injury – ultimately, the issue was whether her impairment was as high as 47% or as low as 22%.

Apart from the significant financial difference between those two assessments under section 71, this was an old claim going back to 2006 and at that time a claimant could only access common law if they met the 30% WPI threshold.  It would be highly advantageous if the claimant met that threshold here.

The process of assessment

From paragraph 7.15 of the Workcover Tasmania Guidelines for the Assessment of Permanent Impairment (which are reproduced at page 17 of the decision), a medical assessor is asked to look at 6 different tables and make an assessment as to which class the claimant falls into.

For example, in Table 7.1 Self-Care and Personal Hygiene, someone falls within the category of class 3 if they cannot “live independently without regular support”.  As becomes clear in the Reasons for Decision, this is only an example of what may be required but nevertheless that type of impact on a person’s life is required to meet that class.

The medical assessor goes through the 6 tables (categories) and arrives at their conclusion for each. He or she then determines the median class score from the 6 categories, before calculating an aggregate score and converting the median class and aggregate score to a WPI (see paragraphs 18 to 21).

What happened in this case?

The worker relied upon the Psychiatrist, Dr Schutz.  He had initially provided a report that the worker had a 26% WPI, but as time went on, and he was provided with further information as to the worker’s condition, he expressed the opinion that the worker had a 46% WPI. By the time the case went to hearing however, the only table where there was any dispute was Table 7.3, the travel category.

Perhaps extraordinarily, if the worker was assessed at class 2, then going through the process of median and aggregation, the result would be a 26% WPI.  If class 3, 28% and if class 4, 47%! It therefore became critical for the Chief Commissioner to make a finding as to what class the worker fitted within.

The Chief Commissioner, in a detailed judgment, stated that what is contained in each table is simply descriptive of what may satisfy the requirements.

The worker gave evidence that she could travel away from her residence taking her dog for a walk and sometimes walk along the beach on her own.  The Chief Commissioner found that this was travel and after hearing her evidence, was of the view that she fell within class 3.  In these circumstances, she had a WPI of 28%.

Although the employer’s lawyer said that he intended to call his own medical evidence, he did not.  We assume that this was because he was happy with the way the evidence was proceeding in relation to travel and did not want to take the risk that his own witness might jeopardise this. The Chief Commissioner was prepared to make a finding that that evidence was probably not likely to have helped the employer’s case but was not prepared to go as far as to say that that evidence would have established, say, a 47% WPI.

Determination

The Chief Commissioner found that the worker could travel and that she was class 3 in Table 7.3.  In these circumstances, she had a WPI of 26%.

Practical implications

This is a very useful case in allowing us to understand what the process of assessment involves in a psychiatric impairment case. It also demonstrates the importance of discussing the tables with a potential psychiatric witness, given that even modest changes in terms of classification can result in significant WPI variations.

Given the potentially significant financial consequences if the worker is able to access common law, it is of course possible that this case may be appealed on the question of what is meant by travel and the evidence provided by the worker.  Presumably the worker would argue that “travel” should not be interpreted as broadly as the Chief Commissioner did.


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Amendments to the Workers Rehabilitation and Compensation Act 1988


Workers Rehabilitation and Compensation Amendment Act 2017

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The Workers Rehabilitation and Compensation Amendment Bill 2016 was given Royal Assent on 16 October 2017 and became the Workers Rehabilitation and Compensation Amendment Act No 39 of 2017.

The Act will come into operation on 1 January 2018.

Set down below are my comments in relation to some of the changes contained in this Amendment Act.

Changes to assessments of whole person impairment

  • Section 72 presently provides that a medical assessor is to assess the degree of a permanent impairment.  Under this new amendment, that task is performed by an accredited medical practitioner.
  • There are also some changes made to Section 77C dealing with accredited medical practitioners. Those changes mean that the Board can grant or refuse to grant to a medical practitioner accreditation to assess the degree of a worker’s permanent impairment.
  • Section 77D is repealed and a new section relating to the duration of accreditation is inserted. This is a general provision relating to accreditation but it does delete Section 77D(2) which related to the accreditation of a person as workplace rehabilitation provider.  There had been an upper limit of 3 years for accreditation for a rehabilitation provider.  That requirement is now removed.
  • In relation to Section 71, Section 71A establishes the process by which guidelines come into existence and how they may be amended or revoked.
  • In relation to the actual assessment itself under Section 72, apart from now stating that this is to be performed by an accredited medical practitioner, it establishes that if a medical practitioner makes an assessment in accordance with the relevant guides, that assessment is not invalid simply because those guidelines then cease to exist, but it ceases to apply from when a subsequent assessment is made under the new or amended guidelines.

Changes to membership of Workcover Tasmania Board

  • Presently the Board consists of a number of parties, including persons nominated by the Tasmanian Trades and Labour Council.  In addition, an Australian lawyer nominated by the Minister and a person with extensive experience in the workers compensation insurance and a medical practitioner nominated by the Minister.
  • In essence, under the new change the Minister can nominate who he or she likes rather than necessarily from any of those particular categories.

SECTION 26 – Presumption as to cause of disease

  • Presently there is a schedule in the Act (Schedule 4) which lists diseases in respect of which there is a presumption of cause. That section and schedule will be repealed.  Instead of there being a schedule in the Act, the Board can specify by notice any occupation or exposure that is to be presumed to contribute to a substantial degree to a disease specified in the notice.
  • In some cases the Board may make reference to a document issued by Safe Work Australia which specifies such an occupation or exposure.
  • If someone has been employed in such an occupation and has been subject to exposure that is specified in the notice, it is presumed to have contributed to a substantial degree “in the absence of evidence to the contrary that the worker’s employment contributed to a substantial degree to that disease”.
  • However, Section 27 – Presumption as to Cause in Relation to Fire Fighters, remains.
  • The operation of this new section is to be reviewed within 3 years.

SECTION 33A – Employer given notice of injury must inform worker of right of claim

  • Seems to be a cosmetic change to prescribed form rather than notice.

SECTION 67 – Death claims

  • The form of claim for compensation (Section 34) is amended by providing, in relation to a death claim, that there is no requirement for a dependent to provide a certificate signed by a medical practitioner certifying the date of death.

SECTION 36 – Employer to forward accident report and claim

  • Presently an employer must, within 3 working days of receiving a claim for compensation, notify the employer’s insurer of the claim.
  • The new section provides that when an employer receives a claim it must complete the employer’s report section immediately and, within 5 working days after receiving the claim, forward that completed claim and a copy of the claim to his or her licensed insurer, if any, and retain a copy for their own records.

SECTION 67 – Amount of compensation in case of death

  • This allows a new factual situation where a person dies leaving a wholly dependent spouse or wholly dependent caring partner where dependent children may not necessarily be related to the person who dies, or the spouse.

SECTION 74 – Rehabilitation services

  • This section now says rehabilitation services includes “advice in relation to job seeking or advice or assistance in arranging vocational re-education or vocational training”.
  • It is common place for employers/insurers to obtain information concerning vocational prospects of an injured worker.  This section now means that if a worker seeks such services they are compensable.  The other side of the coin is that if, for example, an insurer pays for rehabilitation services then in a case where there may be a negligent third party, these costs will be recoverable.

SECTION 76 – Travel expenses for attending upon independent medical examination

  • When the provisions in relation to IME’s were inserted in Section 90A in 2010, Parliament had omitted to provide that travelling expenses were payable to a worker attending such an appointment.  That has now been rectified.

SECTION 86(1)(C) – New accreditation procedures for medical practitioners

  • It follows from the accreditation provisions that in relation to terminations under Section 86(1)(c), it is now a medical practitioner who provides a terminating certificate.

SECTION 87 – Cessation on account of age entitlement to weekly payments

  • Presently the Act provides that weekly payments cease when a worker attains the age of 65 if their injury occurred prior to their turning 64.
  • That provision will now be replaced by another which states that “if an injury occurs on or before the date on which the worker attains the age of 64 weekly payments cease when they attain pension age”.
  • Pension age is defined by reference to the Social Security Act, which is presently 67.
  • In relation to a case where a worker has attained the age of 64, presently Section 87 provides that a worker receives weekly payments for 1 year after the injury occurs.  That will be replaced by a section that says “if the injury occurs less than 12 months before the date on which the worker attains the pension age on the date 1 year after the injury occurs”.
  • There is a similar change in Section 87(2) from 65 to pension age where a worker claims that they had intended to work beyond the pension age.
  • This is a retrospective provision.

SECTION 97 – Removal of excess

  • Presently an employer is obliged to have in place an insurance policy which indemnifies it under the Act.
  • However, an employer is not able to insure against the first weekly payment period and for the first $200.00 of any medical or related expenses.
  • The sections dealing with that have now been deleted, so it basically means that the excess provisions have been removed.

SECTION 108 – Licensing provisions: permits no longer limited to 3 years

  • A licensed insurer will no longer be obliged to provide industry rates to the Board.
  • Presently licenses and permits are issued for a period of up to 36 months.  Moving forward, licenses or permits remain in force until they are revoked or surrendered.  In other words, there is no longer a maximum period for which a licence or permit is granted.
  • There are consequential amendments in relation to revocation or suspension of licences and appeals.

SECTION 138AB – Claim for damages

  • Minor change in relation to the word “permanent” being added to impairment.

SECTION 141 – Injury management

  • Presently an injury management plan is defined as a plan in respect of an injured worker who is likely to be totally or partially incapacitated for work for “28 days or more”.  28 days or more will be replaced by “an extended period”.
  • Presently Return to Work Plans are redefined in relation to people who are “likely to be incapacitated for more than 4 working days but less than 28 days”.  Instead of that time period, the following is substituted: “the return to work of an injured worker”.

SECTION 142 – Injury Management Programs

  • In relation to an Injury Management Program submitted to the Board, there is no longer an obligation to review the program every 12 months.

SECTION 143 – Approval of Injury Management Programs

  • In relation to an Injury Management Program that has been approved by the Board, it remains in force for a period of 3 years, unless a longer or shorter period is specified in the approval.

SECTION 143 – Employer to notify an insurer

  • A cosmetic change from worker to employer.

SECTION 143D – Return to Work Coordinator

  • Only now required where an employer employs more than 100 workers.  Previously it was 50 workers.

SECTION 143E – Return to Work and Injury Management Plans

  • This will now provide that if a worker suffers a significant injury “the employer must ensure that any Return to Work Plan or Injury Management Plan be prepared within the period specified in the employer’s Injury Management Program”.  The old Act provided a short time period in which those documents required preparation.
  • There will no longer be a need for a worker’s Injury Management Coordinator to ensure Return to Work Plans or Injury Management Plans are regularly reviewed by consultation with the various persons mentioned in Sub-Section 2.
  • Sub-Section 6 has been deleted.  That provision provided that if the Tribunal had made an order under Section 81A(3) then a Return to Work and Injury Management Plan did not apply to the worker.  That has now been deleted.  This raises an interesting issue.

SECTION 143H – Issue of certificates – now up to 28 days

  • Previously a medical practitioner could not issue a certificate for a period of more than 14 days unless the certificate set down why the medical practitioner thought that was appropriate.  That has now been amended to 28 days.

SECTION 152 – Summary of act to be available

  • An employer is no longer obliged to display in a prominent place, information about workers entitlements.

SECTION 153 – False or misleading statements by medical practitioners

  • This has changed to a “medical practitioner”.

SECTION 164BAA – Transitional provisions

  • In the main, this deals with persons who are presently members of the Board who may be replaced.

SECTION 164C – Validation of guidelines

  • This deals with the validation of various guidelines in relation to Whole Person Impairment assessments.

Published: 23 November 2017

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