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Telehealth

COVID-19 and the Effect on Workers Compensation and Personal Injury Litigation

By | Articles, Compensation, Insurance

Covid-19 has had a significant effect on our global situation and the way in which we are required to adapt to what is now considered a new normal way of life. Specifically, in the legal sphere of workers compensation and personal injury litigation; employers, insurers and lawyers are faced with the challenge of arranging independent medical examinations’ (“IME“) with social distancing measures and government health directives affecting how they proceed.

However, one takeaway from the COVID-19 crisis is the opportunity of finding newfound solutions and creative services to deliver safe and defendable mechanisms to assist injured or ill people return to work and/or functioning capacity. As such, telehealth (albeit by video conference or by telephone) for IME’s has become an essential development to ensure the continuing progress of litigation during the current pandemic.

What is telehealth?

Telehealth is one of the many terms used to describe the application of technology to provide non-face-to-face contact with patients. Other terms include “telemedicine” and “e-health”. Telehealth services include, but are not limited to, remote doctor and other specialists, psychologists, occupational therapists and patient consultation via video link or telephone. Telehealth is not just a technological advancement. It is the solution to assist workflow and also patients to be assessed at in the comfort of their own home.

Recent Case Decision

A recent decision in the Supreme Court of Rockhampton, Tyndall v Kestral Coast Pty Ltd [2020] QSC 56, dealt with whether the request for IME both by a rheumatologist and vascular surgeon via telehealth was unnecessary.

Crow J ordered that “in the event that the Plaintiff is unable to personally attend the examination due to COIVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology as requested by the [specialist]”. This demonstrates the Courts willingness to adapt and work with social distancing restrictions.

Paradigm shift

The Australian Government has introduced temporary telehealth services to the Medicare Benefits Schedule (MBS). This is separated into three categories, namely face-to-face, video-conferencing, and tele-conferencing when videoconferencing is not an available means of service. Allied health services have experienced a significant influx in the demand for the MBS telehealth consultation, of which half of these consultation were conducted via videoconferencing. Evidenced by the recent decision and move with telehealth in general, it seems that post-pandemic, telehealth may well be here to stay and will continue its advancement to facilitate the new norm for clinicians and patients alike.

How Telehealth Works

There are many ways in which IME’s can take place.

  1. Interview Based
    .
    This takes place either via telephone or video conferencing. This may be conducted for either psychiatric or physical assessment. This includes a preliminary review of medical records as provided and the conduction of an appointment style examination.
  1. Interview based with supporting Allied Health provider under supervision and direction of specialist
    .
    Like an interview-based appointment, however, in this circumstance an allied health worker is physically present with the ‘patient’ during the examination and under the direction of the specialist conducting the physical examination.
  1. Unsupported physical examination whereby the specialist conducts the examination
    .
    Again, similar to the above, though in this circumstance there is no one physically present. The specialist in this circumstance make visual observation and guides the ‘patient ‘ to undertake movements for virtual assessment of tenderness, gait and other necessary observations that are required to be addressed to determine a claim, required payment (from insurer), resolve the particular dispute and or support the claimant back to work / functioning capacity.

OMB Goal Coast solicitors work closely with health care providers to ensure that you are the centre of care and your workers compensation claim or personal injury matter is a smooth experience. We here at OMB will ensure that you are provided with the best available treatment providers and, if needed, your independent medical assessment is conducted within the comfort of your own home.

For more advice, please contact a member of the OMB Insurance team to speak with one of our friendly staff and discuss how we may be able to assist you.

Public Liability

9 Reasons why you should get Legal Advice if you Suffer an Injury in a Public Place

By | Articles, Compensation, Insurance

If you have suffered an injury whilst out and about and are considering your options and what to do next, here are 9 reasons why you should consider seeking legal advice to assist you in seeking compensation:

  1. It is not as simple as simply taking someone to court

In Queensland, the legal process which may need to be followed after someone has suffered the injury in a public place is set out in the Personal Injuries Proceedings Act 2002 (QLD) (‘the Act’).  The Act provides a number of ‘Pre-Court’ procedures that must be followed before you can step foot in a courtroom. These procedures can be extensive so it may be helpful to seek legal assistance.

  1. You have to act fast

If you have suffered an injury in a public place or as an invitee on a premises, Section 9 of the Act provides you with nine (9) months to serve the person who caused your injury (‘the Respondent’) with a Notice of Claim. The nine (9) month period will begin from the date of the incident which caused your injury or from the date you first begin to suffer symptoms from your injury. If you do not give the Notice of Claim within this time, you will be required to provide a reasonable excuse for the delay. If you decide to seek legal advice, a Notice of Claim must then be provided one (1) month after you have instructed a lawyer to assist you. We do recommend that you seek legal assistance when drafting your Notice of Claim.

  1. The Respondent may raise issues with the Notice of Claim

Following receipt of the Notice of Claim, the Act provides that the Respondent must provide a response to confirm whether they consider themselves to be a proper respondent (Section 10) and whether the Notice of Claim complies with the requirements of the Act (Section 12). We recommend seeking legal assistance to make sure you take the correct steps and can provide an appropriate reply, to any response suggesting that the Respondent is not the proper respondent or that the Notice of Claim is not compliant.

  1. The Respondent may argue that they are not liable for your injuries

After you have provided the Notice of Claim, Section 20 of the Act, allows the Respondent six (6) months to investigate the incident and provide a liability response. The liability response will give notice as to whether the Respondent admits liability for the incident or denies that they should be held responsible. The liability response should also contain an offer to settle your claim reflecting the Respondent’s position.. Should the Respondent deny liability, you will be required to gather evidence justifying why they are liable and should be required to pay you compensation for your injuries.

  1. You will have to provide evidence of your injury

In order to receive compensation for a personal injury, you will be required to gather evidence showing what injury you have suffered and how it has affected you and your health and day to day life. This will include obtaining medical records from any and all medical treatment providers (doctors, specialists, surgeons) you have attended both before and after the incident. You also may consider undergoing an independent medical examination to further illustrate the injury you have suffered and how it has affected you. Seeking legal assistance can help you gather these records and consider what evidence you may need to evince your injury.

  1. You must comply with the disclosure

During the course of the ‘Pre-Court’ procedures, you and the Respondent will be required to comply with disclosure obligations. This means that you must provide the Respondent with documents you obtain that are relevant to the facts in issue to your claim. Failure to comply with these obligations can be considered by the courts and negatively affect your claim. We recommend seeking legal assistance to ensure any evidence gathered is disclosed in accordance with your obligations.

  1. You will have to attempt to resolve your claim out of court

Before you are able to commence a proceeding in court, the Act requires you to attend a compulsory conference or a mediation with the Respondent – or give the reason as to why it is not appropriate. The compulsory conference will allow both parties to present their case and attempt to settle the claim through exchanging offers of settlement. We recommend seeking legal advice to assist you in participating in a compulsory conference so that your case is presented as best it can be and appropriate offers of settlement are exchanged.

  1. You can run out of time

In Queensland, you only have three (3) years to complete the ‘Pre-Court’ procedures and commence legal action in the courts for the personal injury you have suffered. This three (3) year period usually begins from the date your action arose, being the date of the incident. Occasionally, it may begin on the date your injury manifests, but at times, this distinction can be difficult to navigate. This limitation period is provided in the Limitation of Actions Act 1974 (QLD) and can only be extended under limited exceptions. The three (3) year limitation period also applies if you have suffered an injury in a motor vehicle accident, work accident or medical incident. It is important that you commence proceedings before this period lapses.

  1. Obtain legal assistance from a supportive and skilled professional

Instructing a lawyer to assist you to navigate the ‘Pre-Court’ procedures provided under the Act will allow you to obtain advice from an industry professional, interested in your claim and eager to assist you following your personal injury.

We recommend seeking legal advice if you suffer injury so that you can be assured your claim will follow the ‘Pre-Court’ procedures and requirements set out in the Act. Contact a member of the OMB Insurance team to speak with one of our friendly staff and discuss how we may be able to assist you.

motor vehicle accident

What is involved in making a claim for compensation following a motor vehicle accident?

By | Articles, Compensation, Insurance

Motor vehicle accidents can often lead to confusing and stressful times. They are occurrences people often do not consider until they themselves are involved in an accident. If you are involved in a motor vehicle accident, you should be aware of the initial processes which will be involved should you make a claim for compensation.

If you are involved in a motor vehicle accident – in Queensland – and decide to make a claim for compensation, the initial process is governed by the Motor Accident Insurance Act 1994 (QLD). This ensures that any claim made by any injured person follows the same process and involves the same steps.

The first step you have to take if you wish to make a claim for compensation following a motor vehicle accident is to serve the CTP Insurer of the other driver, commonly known as the Insured, with a Notice of Accident Claim Form. This form provides formal notice to the CTP Insurer of their Insured that you are seeking compensation for the accident which occurred, and contains all relevant information about the people and vehicles involved, the details of the accident and the injuries you have suffered.

It is important to remember that if you wish to make a claim for compensation, the Notice of Accident Claim Form must be served on the CTP Insurer within 6 months from the date of the motor vehicle accident. However, if you decide to consult a solicitor about the possibility of making a claim for compensation following a motor vehicle accident, you are then required to serve the Notice of Accident Claim Form within 1 month from the date you met with your lawyer.

After you have served the Notice of Accident Claim Form on the CTP Insurer, they will have 14 days to assess the Notice of Accident Claim Form and provide a compliance response. This is a formal response confirming that your claim for compensation is compliant with the requirements of the Motor Accident Insurance Act 1994 (QLD).  Once you have compliance, the CTP Insurer should then offer to meet your reasonable rehabilitation costs.

From the date of compliance, the CTP Insurer then has 6 months to undertake investigations into the accident. These investigations allow the CTP Insurer to fully understand the circumstances of the accident and to determine whether they admit or deny liability for the accident. During this time, you should consider getting further and formal medical assessments of your injuries, and gathering information about the damage you may claim, such as lost wages and medical or pharmaceutical expenses.

After the 6-month investigation period has passed, the CTP Insurer has to provide notice as to whether they accept liability for the accident. It is at this time that they will likely also attempt to make an assessment of your damages and attempt to resolve your claim through making you a written offer of settlement. With any offer made by the CTP Insurer, it is important that you understand the process and the offer being made.

The offer needs to include any amount you are entitled to claim for:

  1. General damages
  2. Economic loss
  3. Medical expenses (past & future)
  4. Care and assistance
  5. General out of pocket expenses

When any offer is made, it is important to make sure that the offer includes everything you may be entitled to claim as any settlement is a once and for all settlement.  For this reason, an injured person may choose to seek assistance and advice when negotiating a settlement

It is common that the parties involved in a motor vehicle accident will attend a compulsory conference to discuss the accident and their offers of settlement. Claims for compensation are commonly settled at this stage, however if you do not accept the offer of settlement, you will then have to make a formal Claim for damages in Court.

The process involved in making a claim for compensation following a motor vehicle accident has been streamlined by the Motor Accident Insurance Act 1994 (QLD) however we understand can still be an overwhelming and confusing. If you have been involved in a motor vehicle accident and are considering making a claim for compensation or have any questions about what is involved in making a claim for compensation, contact our Gold Coast Lawyers team for an obligation free consultation.

Are you covered if your Airbnb guests injures themselves

Are You Covered if Your Airbnb Guests Injures Themselves?

By | Articles, Insurance

This is the first question that you should ask yourself if you are considering renting your property on Airbnb.

Are you renting your whole house or unit on Airbnb or perhaps just renting out a room?  Have you got the right cover? What will happen if one of your guests injures themselves or worse still, dies due to a fault with your property?

If you think your home building and contents insurance will cover you in the event of an accident, you may be in for a rude shock.  Household insurance will generally only cover you for non-commercial activities.

If you rent your property on a one-off basis then your home insurer may allow this if you inform them prior or they may allow it and you will have to purchase a specific endorsement so that you are adequately covered.

If you are regularly renting your whole property out on Airbnb or regularly renting out a room of your property, then this will be deemed to be commercial activity or business activity and your home insurance will not cover you. If someone injures themselves in your property due to your negligence you could be up for hundreds of thousands of dollars or more in compensation. This would financially ruin most people, but it is completely avoidable with the right insurance cover in place.

Landlord insurance policies are available and may offer broader cover than short term policies, but beware, they may only cover you for long term rentals. Check with your insurer rather than take a ‘she’ll be right’ attitude and end up losing all your assets.

There are specific insurance policies available for short term rentals and Airbnb offer their own insurance. IAG also offer a policy but you should ensure that whatever policy you choose, it is right for your circumstances.

You should check what the policy covers you for and what exclusions are applicable. Some things that you should make sure are included are as follows:

  • Theft of items in your home;
  • Damage to your home;
  • Personal liability in the event of injury or death to your guests; and
  • Identity theft.

You should look carefully at the exclusions and limits on the amount payable in certain categories of coverage. If loss of rent if your guests cancel or cut short their stay are important to you, you should note that most short term stay policies don’t cover this. You may have to pay for an extension to your policy to cover this.

The bottom line is, do your research and insure yourself properly. Be open and honest with your insurer. Then, if the worst happens your insurer can deal with the claim and you can rest assured that you are protected.

Contact our Lawyers Gold Coast today for more information.

Putting a Price On Pain & Suffering

Putting a Price On Pain & Suffering

By | Articles, Insurance

Recent reform to awards for pain and suffering for those who have suffered a workplace injury brings the Workers Compensation & Rehabilitation Act into line with the damages available under the Civil Liability Act for motor vehicle and other accidents, thereby creating a more uniform compensation scheme in Queensland.

Serious injury invariably leads to loss of income and added expenses for the claimant. The cost of medical treatment coupled with an inability to work during rehabilitation is a source of serious financial strain for many Australian families. A successful claim for damages will help offset this loss.

Unless the claimant is a minor, the right to claim will generally expire three years after the accident occurred, or after the claimant became aware their injuries were caused by an accident. Thus, it is vital that claims are initiated in a timely manner.

Personal injury claims only succeed if another person (such as your employer or other vehicle driver) owed a duty to the claimant, and breached that duty through negligent action or inaction. A causative link to the injuries must also be demonstrated.

Negligence by the claimant may reduce or eliminate the compensation. Claimants must avoid obvious risks and take care for their own safety.

Awards for pain and suffering (general damages) are based on medical opinion which determines the severity of the injury suffered and any resultant long term impairment. For injuries sustained from 1 July 2010 onwards, the Workers Compensation & Rehabilitation Regulations Injury Scale Value tables sets out the awards payable.

However, there is more to a personal injuries claim than simply attempting to quantify the pain and loss of enjoyment of life suffered. Additional types of awards may be made to successful claimants:

  • past economic loss (and past superannuation);
  • estimated future economic loss (and future superannuation);
  • past hospital/medical/rehabilitation costs and related out of pocket expenses;
  • predicted future rehabilitative expenses and out-of-pocket expenses; and
  • care provided, in the past and/or future, by family and friends, or employed carers and other service providers.

These awards aim to put the claimant back in the position they would be in had the negligence and resultant injury not occurred. This can return some kind of financial normalcy to the lives of those affected by serious injury.

 

 

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