However, we perhaps felt safe in the assumption that those provisions were not too onerous and we largely went about our business without concern that we may be acting contrary to our obligations under that Act. That is, of course, until WorkCover issued two bulletin's to spell out exactly what the relevant obligations are.
This brings us to the current situation, where the workers’ compensation industry in WA has been left scrambling to ensure that we are all complying with the privacy legislation. Of particular concern is the disclosure of claimants’ personal and sensitive information obtained for the purpose of assessing and managing their respective claims.
The bulletins – issued on 9 and 17 July 2024 - provide a detailed overview of the entities to which the consent authority in the prescribed claim form expressly extends. And the most notable absences are (drumroll please…) brokers and employers.
There are hundreds of brokers working in the workers’ compensation sphere in WA. Many of these brokers have years of industry experience, while others bring to their roles skills and experience from adjacent industries, including workplace health and safety, allied health, injury management, human resources and more. And the collective skills and experience that brokers have is put to good use; they know how to act as an intermediary, supporting employers and their interests; ensuring that those employers have adequate insurance coverage; that they are meeting their statutory obligations; and that they are paying appropriate premiums. They play an important role in the scheme and their duties are not such that they could easily be subsumed into the roles played by other participants.
Returning for a moment to WorkCover’s bulletins: it was made clear that employers, also, are not covered by the consent authority… but that was said as more of an aside (a soft whisper that followed the bellowing announcement about brokers).
As the message disseminated by way of WorkCover’s bulletins reverberated through our brains, some questioned why the focus seemed to be so heavily on brokers. We posit that it’s the lack of legislation covering brokers operating in the WA workers’ compensation scheme. Given that the scheme is based around legislation that is designed to benefit workers – we can see why WorkCover needed to step in here: to remind everyone that the private and confidential information of those workers is not to be given out to anyone who is not covered by the scheme, at least without the appropriate consent.
While the gold standard is to only use, disclose and collect personal information with express consent, there are some other exceptions in the Australian Privacy Principles (APP) which allow insurers to share personal and sensitive information obtained about a worker with the employer and broker if:
(a) that worker would reasonably expect them to do so; and
(b) if the disclosure is directly related to the purpose for which that information was obtained by the insurer.
Practically speaking, we interpret this as meaning that an insurer can disclose information to employers (and possibly brokers) without the worker’s express consent, but they have to be careful about what they disclose and why.
An insurer who obtains, for example, a worker’s full pre- and post-injury treatment records, can only disclose to the employer the information in those records that is directly related to the assessment and management of that worker’s claim. This might also extend to the broker if the broker is playing a claim management function and if the worker is aware that the broker is playing that function.
While it may not be particularly convenient to think carefully about the limits of disclosure, it is necessary. Not just for privacy reasons, but also for the efficacy of the scheme. A major aim of the scheme is to get injured workers back to work once they recover capacity. If a worker knows that their employer has seen their entire medical history, they may be less inclined to return to work. It’s all well and good that the compensable knee injury has resolved, but it’s going to be difficult to meet your boss’s eyes during those weekly catch-up meetings, knowing that he has seen records detailing your most embarrassing injuries and ailments.
Of note, the new Workers Compensation and Injury Management Act 2023, prohibits the disclosure of information about a worker’s claim for compensation (or claim history) to another person for the purpose of pre-employment screening. So, the two year gap in a worker’s employment history that they declined to elaborate on during the interview? Employers will now have to just use their imaginations….and maybe a pre-employment medical examination.
For now, it seems that the easiest way to deal with these privacy issues is for a further, separate form to be issued to workers on each and every claim, current and future, where there is broker involvement.
This article was written by Ash Glasson, Senior Associate | Insurance & Risk.