Your Rights Series: Privacy

First in our series on your rights as an injured Worker.

These questions come straight from a reader written so well we will use them as our headings.

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Question 1. Privacy. What rights do injured workers have?

Injured Workers are entitled to the same rights to privacy than anyone else is. Their medical records are covered by the Health privacy act for instance. However, Insurers are unscrupulous in how they pursue their own rights to access information. They are entitled to “reasonable access” not total access and should frame any letter with this in mind. I.e They can ask if you have a history of depression if your claim is about depression or they can ask for a history of back injury if your claim is about a back injury. They can not ask your doctor to hand over information on your depression if you are claiming for a back injury or visa versa. It has to be related.

Access to your work records are different as the insurer is acting on behalf of your employer and those work records are owned by your employer, but again it should be relevant for instance the fact that you may have had two weeks off work for the flue last winter has absolutely no relevance to most forms of claims you might put in.

Insurers will send you a letter requesting your permission to access records such as medical and employment, they should be written in such away to ensure they only access relevant records and not all records.

Do you have to sign it? the answer is technically no- its your choice, but if you don’t allow them permission your claim can be denied (lack of evidence- not disobeying a request because that would be harassment for a right they don’t have). One thing people do in response to a general letter is to send it back with the words “reasonable” inserted or to ask for the letter to be changed so that they only access the related information from your doctor and employer.

Then its up to your doctor to go through their records and redact (black out) those parts of the record that have nothing to do with your injury (like the time you went to see the doctor because of a bout of flue). They have to adhere to the Health privacy act to the letter. - if you sign a release letter that says “all” records, your doctor should hit back and still redact so it is only related records but they do have the letter saying all so some will just follow through with that.

One common theme is asking for all your medical records rather than just the relevant medical records. they leave out

Question 2. Can they legally surveillance people?

Yes, surveillance is allowed at law but they only have the rights that the average person has, investigators and private eyes don’t have any special rights above this. Any one can take a photo of a public street, no one is allowed onto your property to take a photo or look through your mail.

They are also allowed to walk along the street with a video camera but they aren’t allowed to stalk you.

The only people who can enforce this are the police. If you feel like you are being stalked or do confront a private eye you have the absolute right to contact the police and share your concerns (do you actually know they are being hired by the insurer?).

So if you feel you are under surveillance you should call the police and report it. If the stalker is acting legally, the police can confirm it for themselves, if it is illegal the police can arrest them and charge them with a number of criminal charges.

Question 3. Can they ask intrusive questions about not only you but your family?

No. They cant ask intrusive questions about your family, the questions must be related to the claim only.

You have the absolute right to not participate in an interview from the insurer, to not answer a question from the investigator and not sign the investigators notes at the end of the interrogation. In fact not to sign should be your default position. The insure can still rely on their notes but it might help you if it ends up in court.

Certainly they are not allowed to follow, intimidate or do anything outside their contract with the insurer, which unless the insurer is very, very stupid will only relate to you- not your family.

Question 4. Are injured workers privacy rights different to those not injured at work?

No, see above.

Question 5. Is the privacy act not applicable to injured workers?

yes it is, see above.

Question 6. Why can’t you take a lawyer union representative in with you to an ime medical appointment?

You can. The IME’s have to follow the medico/legal guidelines of their professional organisation and that (at point 2) states categorically that you have the right to take a support person in with you during the appointment. your insure says you cant? ignore them the decision is yours not the insurers, not the medico/legal you are going to see.

Question 7. Why can’t you record things, take notes voice record?

This is two seperate questions.

  1. You can write anything you want down at the time or after the event (always recommended).
  2. You can only record (tape or video) with permission of the other party. If they are recording their permission should be given at the same time (We used to do this at the Union when a member was being interrogated by an independent investigator, then compared our notes and records with the produced report.

Question 8. Why are records inaccurate, i.e. They don’t write down what you actually say?

Your guess is as good as mine. It is hard to write down exactly what someone says unless that person has stenographer training, but if you read a stat dec on a recording they will included the words “to the best of my memory” and “words to the effect of” or both that covers some inaccuracies with their work.

Question 9. Why are people injured at work not given proper advice regards their rights?

Because it’s not in the insurers or the governments interest to ensure they know their rights. That’s why we exist.

Question 10. Why is it that you have to have great legal expense when you are not at fault?

Not exactly about privacy but Lawyers charge a lot for their services and it can be quite complex. But if its with the Workers Compensation Commission then you should be able to get funding through the ILARS program run by WIRO

Question 11. Why is there not a package given to injured workers after their injury to fill in with the accident form about what support, etc they need to know and so on so they are fully informed?

See question. 10. Again, that’s why the Injured Workers Support Network exists.