Guidance for medico-legal examinations during the COVID-19 pandemic

The State Insurance Regulatory Authority (SIRA) has updated guidance information for medico-legal / other examinations during COVID-19 in response to amendments to COVID-19 Public Health Orders and the NSW Roadmap for easing COVID-19 restrictions.

Under the NSW Roadmap for easing COVID-19 restrictions, greater freedoms are available for all people in NSW from Wednesday 15 December 2021 regardless of vaccination status.

While reopening continues, if scheduling a medico-legal examination or other appointment during COVID, the referrer is to consider whether the requirement to attend an in-person appointment is permitted under the Public Health (Covid-19 General) Order 2021 (noting this is subject to change) and reasonable in the circumstances. The Public Health (COVID-19 General) Order 2021 commences 11 October 2021.

Note: Public Health Orders are amended regularly. While reasonable care is taken to keep the content updated, the referrer should stay abreast of any changes to COVID-19 Public Health Orders by accessing the current version on the NSW Legislation website

Considerations

The referrer should consider the need for the examination and urgency for each matter to minimise the need to attend face-to-face appointments.

Consideration should also be given as to whether the requirement to attend an appointment is reasonable in the circumstances.

This includes consideration of whether further information can be obtained from the treating practitioners’ reports or other independent opinions, or whether the examination can be reasonably postponed until a later date.

The referrer should also consider the appropriate method of assessment (whilst ensuring accuracy is maintained). There may be sufficient information available on file to conduct an assessment on the papers.

The Personal Injury Commission provide guidance regarding medical disputes suitable for assessment on the papers.

Alternatively, a video consultation may be appropriate in some circumstances instead of the requirement for an in-person assessment, having regard to the nature of the person’s injury and unique circumstances.

Note: The Workers compensation guidelines provide that in limited or special circumstances, such as the COVID-19 pandemic, examination by video consultation may be appropriate and effective and is to be considered by the insurer on a case-by-case basis (see Part 7.4 of the guidelines). Further, the insurer is to consider whether the requirement to attend an independent medical examination is reasonable in the circumstances. The Workers compensation guidelines provide that this includes the requirement to consider amendments to existing laws and Public Health Orders made in response to COVID-19 (see Part 7.7 of the Workers compensation guidelines).

The Motor Accident Guidelines outline that insurers and those acting on their behalf are to take into account the impact of the COVID-19 pandemic and the related public health order on an injured person’s circumstances when managing a claim, including when making decisions related to the injured person’s ability to comply with legislative obligations or timeframes. The Motor Accident Guidelines also provide that insurers should not arrange frequent examinations, and the request to arrange a medical examination should be reasonable in the circumstances (see Part 4 of the Motor Accident Guidelines).