An ill worker whose private medical history was used without his permission in a NSW government press release that declared the state’s workers’ compensation scheme was out of control, has won the right to pursue sacked former finance minister Greg Pearce for damages!
You may recall that we received a private and confidential email from an injured worker regarding our article titled “Outcry from injured workers as axe hangs over WorkCover NSW payouts” back in April 2012, where the NSW government grossly mis-represented two workers compensation cases (studies) to make it look as if injured workers were ripping off the system and costing millions of dollars.
Those 2 cases were:
Case Study One
A worker reported suffering glandular fever in 1991/92 and was incapacitated for three months. Several years later, the worker reported being generally unwell for several months with flu, bronchial asthma, sinus problems, sleeping difficulties and poor diet as a result of the glandular fever.
In 2001 the worker submitted a workers’ compensation claim for chronic fatigue syndrome due to the excessive hours and stress experienced at work in 1995/96.
The worker travels more than 1,000 kilometres to see the treating doctor based in another state.
The worker claims interstate travel costs to see their treating doctor, domestic assistance, lawn mowing, multiple weekly physiotherapy, chiropractic therapy, psychiatric therapy and exercise physiology.
More than 10 years after making the claim, the worker continues to receive the maximum weekly workers’ compensation benefits, even though working part time in a different field.
TOTAL COST TO DATE = $657,039
Case Study Two
A worker suffered a minor injury more than two years ago while driving over a pot hole and was deemed “totally unfit” for work.
The worker has become a recluse and is deemed by the nominated treating doctor to be completely consumed by the workers’ compensation claim.
At a recent case conference, the worker was deemed psychologically ill as a result of an obsession with the claim.
The doctor feels the claimant needs to get out of the scheme to improve their health.
The claimant still receives workers’ compensation.
TOTAL COST TO DATE = $195,000
The injured worker noted in his/her email to us that we had suggested it might be worthy of a complaint to the Privacy Commission. At the time the injured worker wrote that s/he was most interested to hear your views as /she thought s/he may well just do that because 1. S/he doubts the amount being cited 2. The insurer keeps initiating legal disputes and losing them – costing around $ 100000 in legals and medicals
At the time we responded to the injured/ill worker that:
“we do know of an injured worker based in NSW who wrote to the NSW Government about this two cases. First of all the injured worker wanted (we believe) to obtain the genuine facts surrounding these two cases as they certainly appear to be very mis-represented. The injured worker also expressed concerns re breach of privacy has s/he felt (rightly) that there was enough detailed information of those two cases for the affected person to be identifiable, which would consist of a major breach of privacy. We believe that the injure worker was basically told by workcover NSW board (and GIPA) that it was none of his business as it (the cases) did not affect him (they were not about him).
We do know that the injured worker is still pursuing the matter and we have asked him/her to please share his/her correspondence/information and/or suggestions.
What was clear from the injured worker’s letter received was that if YOU are affected (if it’s about you) you have the right to pursue the matter for privacy breach.”
Well, the great news is that, indeed, this ill worker has just done that and has obtained permission to sue Pearce for damages!
Ill worker seeks damages against Greg Pearce, sacked former NSW finance minister for breach of privacy
December 14, 2014 | The Age
A sick man whose private medical history was used without his permission in a NSW government press release that declared the state’s workers’ compensation scheme was out of control, has won the right to pursue sacked former finance minister Greg Pearce for damages.
The man, from northern NSW, has fought for nearly two years to have the state government deal with his breach of privacy complaint.
Mr Pearce, who was sacked by former Premier Barry O’Farrell in August last year after he appointed his wife’s boss to a plum job as a director of Sydney Water, is alleged to have contravened the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002.
Mr Pearce issued a press release in April 2012, warning that WorkCover was “fast becoming unviable” and faced a $4 billion deficit.
To prove the point, the minister’s office included two case studies (as described above) of long-term users of workers’ compensation.
The first detailed how a worker had received $657,000 since 2001 after suffering chronic fatigue stemming from an earlier case of glandular fever.
“The worker travels more than 1000 kilometres to see the treating doctor based in another state,” the press release stated.
“The worker claims interstate travel costs to see their treating doctor, domestic assistance, lawn mowing, multiple weekly physiotherapy, chiropractic therapy, psychiatric therapy and exercise physiology.
“More than 10 years after making the claim, the worker continues to receive the maximum weekly workers’ compensation benefits, even though working part time in a different field.”
In his original complaint to the government, AQO said:
“Those details are so specific that they have not been revealed to Mr Pearce or the world at large and are not on the public record.
“He has then used the information in a way that it was not intended to be used. In doing so he has breached my privacy.”
The Sun-Herald has learned AQO had written to Mr O’Farrell when submissions had been called for a proposed overhaul of WorkCover.
A response letter said his complaint had been referred to Mr Pearce but the state government’s general manager for workers’ compensation would reply. However, before a response was receieve AQO’s details appeared in the press release.
At the time, Mr Pearce’s office refused to deal with his complaint by claiming a jurisdictional point that the minister was not a “public sector agency” and therefore could not be pursued under the privacy laws.
In a decision this month, the Tribunal threw out the government’s defence and found that it has the jurisdiction to hear and decide whether AQO’s privacy has been breached.
When contacted by The Sun-Herald, AQO did not wish to have his name used but said through his lawyer, Jackson Rogers, that he was “extremely disappointed” that the government had fought to prevent his complaint even being considered.
Mr Pearce was unavailable to comment but a spokesman for Finance and Services Minister Dominic Perrottet said: “This matter is still before the tribunal, therefore we are unable to comment.”
Stephen Blanks, president of the NSW Council for Civil Liberties, said it was “good news” that the government had already amended privacy laws to clarify that a minister and their office are subject to protections against privacy breaches.
We urge the 2nd injured worker whose story has been abused for political gain to also commence legal proceedings against disgraced Greg Pearce.