Fact: Many falsely assume that injured workers in the workcover system “behave” in the way they do because they have an economic incentive to do so, however very few have looked at the workcover system itself to find out how the (entire) process impacts on the mental health of the injured worker.
The concept of Do No Harm should be applied to workcover
Injured workers have often demonstrated behaviour that would lead us to believe that the workcover system itself is, if not directly responsible for, at least causally related to, psychiatric injury that can have terrible consequences, not only in terms of lost work days but— far more importantly— on the long-term health of the injured worker.
Workers compensation in Australia—anti-therapeutic effects and consequences
No fault Workers Compensation schemes were established for worker benefit yet have created serious negative outcomes for many workers, particularly the more seriously injured ones amongst us (longer claims)
Equally, tort systems may, potentially also have negative and anti-therapeutic effects that outweigh positive gains.
Workcover schemes are supposed to alleviate anti-therapeutic tort- like effects by allowing fast payment and medical treatment but, on the other hand, can also promote blaming in areas such as causation of disability/impairment, incapacity level and on going medical requirements.
Tort systems allow injured workers to have their day in court but the litigation process can be (is often) slow and protracted, causing additional mental anguish to injured workers.
The concern of causation (that is whether an injury was actually caused at/in the course of employment)
There are basically three essential thresholds:
- First, that the injured person is (or must be) a worker, under the state’s legislation.
- Second, the injured worker is required to prove the causal connection between their injury or the contraction of a disease for which they make a workcover claim. They must prove that work caused or predominantly caused their injury/illness.
- Third, compensation is also preconditioned upon the requirement to prove that the injury or disease causes incapacity.
These requirements are of particular concern in cases of, for example, RSI (Repetitive Strain Injury), stress claims and even many musculo-skeletal conditions, because they are generally difficult to assess and measure.
It is well known that workcover insurers have developed an institutionalised scepticism for such claims. And, in many instances because of the additional scrutiny applied to these claims the dignity of the injured worker may be lost.
In addition, cases raising issues of causation expose the injured worker to multiple medical investigations/assessments and the necessity of repeating their personal medical history (at times very traumatic) as well as the progression or evolution of their current injury.
Thus anti-therapeutic consequences will continually arise as the causation issue is presented or scrutinised.
Research has shown that medico-legal issues adversely affect the injured worker’s relationship with his/her doctor.
The mere fact that an injury could be compensable sometimes (and too often) discourages a doctor from accepting an injured worker as a patient.
Workers compensation fraud in Australia— a note
In 2003, The Standing Committee ( ²) noted that the perception of fraud differs depending on the individuals’ role and experience with workcover schemes and that what constitutes fraud and fraudulent behaviour are subject to significant subjective variation.
At the time, The Standing Committee also noted that some activities which were perceived as fraud may be related to inaction and incompetence.
More interesting, The Standing Committee was unable to cite any definitive data which quantified injured worker fraud, although the overall view of witnesses to the enquiry was that injured worker fraud was overstated and not significant.
In relation to employer fraud, the Standing Committee found that in large part this was due to the failure of employers to insure or fully insure their workers.
Of great importance was that the Standing Committee noted evidence to the effect that investigators were encouraged not to collect evidence detrimental to the insurer/employer.
The Standing Committee also found that the evidence of injured worker fraud was minimal and the costs of fraud are not known.
These findings are by and large supported by academic literature.
At the time, The Standing Committee also clearly shifted its attention from the issue of fraud to the return to work scenario, which was encouraging to say the least, from a Therapeutic jurisprudence (“TJ”) perspective (TJ is the study of how legal systems affect the emotions, behaviors and mental health of people).
Whilst the language of TJ was not used it was (and still is) obvious that the Standing Committee was/is mindful of the anti-therapeutic consequences that maladministration of claims can have on injured workers.
Good faith in workers compensation in Australia
For those who still don’t know it or don’t believe it:
However an heroic attempt was seen in Garcia v CGU Workers Compensation Pty Ltd. At first instance the District Court of New South Wales —in 2006— found that a workcover insurer (CGU) had breached its duty to manage a worker’s claim in good faith, and awarded the injured worker damages for economic and non-economic loss, for injuries consequent upon the workcover insurer’s poor claims management, and punitive damages for recklessly increasing the harm to the injured worker.
However, and sadly, The New South Wales Court of Appeal in CGU Workers Compensation (NSW) Limited v Garcia overturned this decision.
The Tort of Breach of Good faith not recognised in Australia in relation to workcover claims
An American 2004 decision of the Galveston Court of Appeals in Texas Mutual Co v Ruttigeris worth considering alongside the decision inGarcia.
In this case, the court held that the insurer had failed in its obligation to conduct a proper investigation, and that denial of the workcover claim was made without any bona-fide (goof faith, honest, sincere) evidence and that the workers compensation insurer did not make an adequate attempt to contact the injured worker to clarify the information at hand. The Court of Appeals awarded Mr. Ruttiger US $100,000 for mental anguish arising out of the wrongful denial of the claim.
Another very recent case can be read here: Workcover insurers acted cruel & malicious – Canadian Court handed largest punitive damages ever
Workcover systems continue to demonstrate anti-therapeutic effects despite being postulated in a therapeutic approach
Through their study of Australian workers compensation claimants, James and Brownlea established that the level of injury impact is not always related to injury severity.
They found that impact upon an injured worker increased where threats to employment security increased, compensation payments were delayed, when the diagnosis and prognosis of injury is unclear, or when social roles or personal independence is affected.
Roberts-Yates observed the difficulties of injured workers progressing through the South Australian WorkCover system. She concluded that it was necessary for there to be a partnership between injured workers, employers and medical care providers in order maximise return to work outcomes. A holistic approach to worker rehabilitation recognising social/psychological issues is preferred
Workers Compensation systems continue to demonstrate anti-therapeutic effects despite being premised in a therapeutic approach. Beardwood and her colleagues referred to this as being a ‘victim twice over’
Do No Harm
It has been suggested that the concept of harm prevention (Do No Harm)—which is well known in the area of occupational health and safety— should also be applied to workers compensation.
If the concept of Do No Harm is imbedded into the workcover legislation it would act as an aid to interpretation of the entire scheme.
wouldn’t it be wonderful…
- to introduce a statutory duty of good faith within the workcover system/insurance!
- to have a workcover Ombudsman to oversee good faith claims
- to give consideration of allowing claims for disability arising from the compensation system
- to have a mandatory provisional liability procedure (all accepted until proven ‘guilty’ and not the other way round)
- to seriously limit the frequency of medico-legal examinations (IMEs)
- Primary focus on medical care needed for the injured worker
- to introduce Case conferencing incorporating a ‘Health Care Approach’ involving medical professionals
- Establish ways to minimise the traditional adversarial approach to workers compensation
- to perhaps introduce return to work incentives for the injured worker, allowing for example RTW trials without being financially punished
- Take away the monetary bonuses attached to (forcing) injured workers to RTW (case managers, rehabbers etc)
- Champion return to work (this obviously includes getting rid of biased, and frankly dodgy rehabbers and vocational assessors)
¹ Lippel (1999)
² The Parliament of the Commonwealth of Australia |Back on the Job: Report into aspects of Australian workers compensation schemes| House of Representatives Standing Committee on Employment and Workplace Relations (2003) Canberra (Back on the Job)
Article based on ‘Preventing Further Harm to the Harmed-A Therapeutic Approach to Workers Compensation’ |Robert Guthrie & Stephen Monterosso | Curtin University of Technology
[Article dictated by Workcovervictim and manually transcribed on her behalf]