Key Points
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In appropriate claims, an authority should be obtained from a worker early in the life of a claim to support an early request for clinical notes. This affords the best chance that the Commission will issue a Direction for Production, if a treating doctor has previously refused to provide copies of their file.
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If no attempts have been made to obtain a doctor’s records, Scheme Agents and their legal representatives can no longer assume they will be granted leave to issue a Direction for Production for clinical notes during WCC Proceedings.
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If parties are going to be granted leave to issue a Direction for Production for clinical notes, they need to establish they have previously made attempts to obtain such records.
A treating practitioner’s clinical notes can be imperative to a proper contest of liability, but in 2016 amendments to the relevant Rules has meant the Workers Compensation Commission has become reluctant to issue Directions for Production that would compel doctors to supply their notes.
The Workers Compensation Commission Rules 2011 (2011 Rules) provide that parties can seek leave to issue a Direction for Production compelling a third party (such as a doctor or prior employer) to provide copies of relevant documents. Before this year such a Direction was previously sought, and routinely granted, at WCC Teleconferences. Most often Directions were sought in respect of a treating doctor’s file.
However, following changes to the 2011 Rules on 13 November 2015 [1], an Arbitrator cannot order the issue of a Direction for Production if the insurer or employer had the opportunity to obtain the documents and failed to do so. In 2016, the WCC has been rigidly enforcing this amendment.
The relevance to Scheme Agents is that every Workers Compensation Claim Form or WorkCover Certificate of Capacity contains an authority permitting insurers to obtain documents from a worker’s treating doctor, employer, or other insurer. Accordingly, if proceedings reach the Commission and a Scheme Agent has not already used that authority to request clinical notes, it can be difficult to persuade an arbitrator to grant a Direction for Production for that purpose.
In litigated matters, Hicksons has been acting promptly to request an authority from the worker’s representative with a view to obtaining clinical notes from the treatment providers directly, where appropriate. In the event the authority is not provided, we can demonstrate efforts have been made to obtain the clinical notes informally prior to requesting a formal Direction for Production at teleconference.
Although we take such steps, it is recommended as best practice that Scheme Agents ought to take steps to request clinical notes from treatment providers as soon as possible where it is considered relevant. Clinical notes act as important contemporaneous evidence, particularly in claims where there is a delay in notifying an employer of injury, liability for an injury is in dispute, or where there is a suggestion a worker may have suffered a separate non-work related injury.
Forwarding a request to a worker’s doctor to produce their clinical file early in the life of a claim will ensure that relevant evidence is obtained promptly or, in the alternative, support for any future request for a direction for production made at teleconference.
Post by Loren Riddell