Justice is crucial to protect injured workers


An injured worker kindly shared an extremely well-written, to-the-point article titled “Justice imperative to protect injured workers” written by a decent, empathic and passionate Canberra Lawyer, David Lander.Whilst the article points the finger at the adversarial Comcare Scheme, it could well be applied to all workcover schemes and their agents…

Justice imperative to protect injured workers

Date: November 6, 2013
By David Lander

The escalating costs of public sector workers’ compensation too easily invite a political response of further circumscribing employee injury rights and remedies as a knee-jerk fundamentalist economic management tool. After all, the no-fault scheme that sought to remove culpability and adversity from workplace injury cannot be allowed to drain Comcare’s or the state’s budget.Photo illustration: Louie Douvis

As in all sound and rational responses to crises, find a victim to punish; don’t look for the real causes or deal with the failings of the system. The evidence; anecdotal, empirical, statistical, inferential and universal is that about 95 per cent of all claimed injuries, workplace or otherwise, are honestly reported and accurately attributed. The vast majority of injured employees suffer financial losses, economic and emotional deprivation and some level of impaired function.

True malingering is a very small proportion of both claims and claim costs. Claimants often become lepers in the workplace tarnished by making a claim and ostracised for attributing any cause to the employer.
Recent large-scale independent inquiries into workplace bullying and harassment have documented thousands of examples of misuse and abuse of employer and supervisor power, reprisal action, victimisation, systemic misuse of performance management and harm and damage caused by the adversarial systems to which injured employees must resort.

Injured workers lose not just their health but often their relationships, their homes and their coping mechanisms in the pursuit of basic compensation entitlements, often wrongly and sometimes unethically withheld by insurers.

Comcare as the Commonwealth insurer is meant to behave as a model litigant: without regard to technicalities, in good conscience, on the substantial merits of a claim, without delay and to be accurate in its findings. It is meant to implement beneficial legislation designed to provide responsive, effective relief without putting the injured, often increasingly impecunious claimant to needless delay and expense.

If the worker’s injuries result from the roof collapsing at work or some equally unarguable catastrophe, Comcare has a near-unblemished record. But if the worker has been psychologically damaged by alleged mistreatment we step into a different paradigm.

Comcare’s motto is ”putting you first”. The ”you” it transpires is ”the community”, a word that appears nowhere in the enabling legislation. Comcare’s unwritten imperative is to see how it can say ”no”; Comcare’s modus operandi is to promulgate and practise myriad policies that addle, befuddle, obfuscate and complicate an already tortuous and complex act, requiring of relatively junior decision-makers, mostly untrained in the law and the legislation, skills and wisdom that Federal Court judges require to make lawful decisions.

And then we have the paradigm and perplexities of the medical world, a fraternity divided like all professions by philosophy, values, ideology and commercial imperatives.

Doctors are trained in the scientific method and correctly practise medicine to high coefficients of reliability. Many are incapable or unwilling to look at causation as a balance of probabilities equation, the legal test. And it is causation, wrapped in complex language that so often lies at the centre of the adversarial determination of liability for compensation.

It is a travesty of justice that it is the state, in all its entities, which, historically, commits more crime and misdemeanour than all its citizens, but is rarely if ever held accountable or brought to justice, and which fails to protects the weakest, the most disadvantaged or the most oppressed.

Headlines that inferentially blame the victims and call for emotional responses that punish the weakest in society are not hallmarks of civilisation.

Politicians do not need media support to drive fear-based public policies.

Bureaucracies are inherently dysfunctional and inherently unstable. Abuse of power is mandated whenever corporations, public or private, admit to no failing or failure. The most successful organisations, from families through community to enterprises of all shapes and sizes, work collaboratively and collegiately, if competitively. They also allow for mistakes and seek to learn from them.

Australia needs to be open for business but it needs the courage and the ethics to do business honourably and fairly and to treat the players and the traders as equals.

David Lander is a (decent!) Canberra lawyer.

Source: http://www.smh.com.au/comment/justice-imperative-to-protect-injured-workers-20131105-2wzd7.html