I recently asked an orthopaedic surgeon why he recently decided to cease accepting workcover patients; the surgeon gave an interesting but perhaps wretched answer, saying that workcover patients are much more difficult o engage and treat than general patients because “these injured workers are so angry at the [workcover] system”.
A couple of days ago, Newcastle (NSW) newspapers reported that a man, who later was identified as an injured worker with a claim with QBE, had set himself alight in the offices of workcover insurer QBE. The man has been airlifted to a Sydney burns unit in a serious condition. Continue Reading…
Further to our article titled “IME doctors – is their job dangerous? “, we forgot to mention that not only (notoriously biased) IMEs are being ‘threatened’ by (often rightly) disgruntled and enraged injured workers, but also workcover lawyers, defense lawyers, barristers and even some judges. Some injured workers have also targeted their utter frustration, desperation and rage at their (pre-injury) employers.
Again, following a series of rather rude and inappropriate comments posted by injured workers to fellow injured workers, it is more than clear that many injured workers harbour a great deal of anger and resentment.
Our co-author, Madame Zena, just saw this alarming article in today’s “The Australian” that is likely to be of interest to our many injured nurses readers and their supporters.
The harsh reality few understand -and even fewer are willingly to express openly- is that when an injured worker is on the “system”, they start to lose control, and lack of control can often lead to desperation – and a desperate injured worker, “fed up” with the workcover system act out in different ways. Many desperate injured workers, like us, will vent their anger , rage and frustration on blogs and forums like workcovervictimsdiary.com; others send letters and/or emails documenting their horror stories, desperate situation and their frustration to politicians; a few – tragically- are so fed up with the system they choose to commit suicide because they feel hopeless; and another very few become so enraged they will commit acts of violence, including homicide in a desperation to get better.
Over the past few weeks (months), aworkcovervictimsdiary has been kindly cc’d into a desperate injured worker’s most frustrating “correspondence” with Allianz workers compensation insurance.
Letter-bomber Colin Dunstan has accused Comcare of ”wilfully defying” court orders and withholding thousands of dollars in compensation as it works out what he’s owed.
Bad faith insurance practices occur when an insurance company knowingly and intentionally denies payment of a legitimate claim by using several different tactics. These tactics include failure to investigate claims promptly and thoroughly, delaying and underpaying claims, misinterpreting policy language, and failing to communicate honestly with the insurer regarding claims. A key word in bad faith practices is “unreasonable“. If this is not enough, insurance companies and their representatives and lawyers will also use disturbing bad faith negotiation tactics, be it at conciliations or settlement mediations. Here we list common tactics.
Unfortunately, many insurance companies will continue to practice bad faith in hopes the insured will just “go away” and drop the claims. They will also do anything to stonewall negotiations in the hope to delay, stall and minimise settlements.
Workcover insurance bad faith negotiation tactics
Individual Responses regarding Bad Faith Negotiation Tactics
A list of any other ways in which a party acts in “bad faith” (i.e., unfairly) in a negotiation:
- ‘stonewalling’ or frustrating the process unnecessarily
- If party is primarily motivated by punishing the other, or by vindicating herself
- The mediator doesn’t help the parties overcome these obstacles
- Party uses the process for ‘discovery.’ Party has no intention to explore opportunities for settlement
- Comes with no intent in even considering settlement except for some number decided by someone else who isn’t present. Then the negotiation usually is a total waste of everyone’s time, money, and effort.
- Takes advantage of a power imbalance which mediator does not address and ameliorate; consciously takes advantage of mediator’s bias or close link to such party; is simply unreasonable and intractable; is unwilling to listen to the other side
- A party gets off topic so much they run the time out and both sides aren’t given enough time (even if they are given “equal” time but one party isn’t permitted to address things important to their position b/c of having to address the side issues (“distractions”))
- A party uses hardball tactics meant to corner or trick the other party into submission
- If a party knows or should know the value of the case but refuses to acknowledge it
- Threats relating to future unfair behaviour
- Not willing to go through whole process
- I don’t equate “unfair” with “bad faith” Unfair could simply mean having a better lawyer, more experience, etc.
- Asserting and maintaining an unreasonable position; being unprepared; not having decision-makers present
- Fails to show up
- They don’t listen
- By refusing to listen to the other side’s position(s)/need(s)
- Refuses to listen to the other party. Refuses to provide necessary documents
- Parties can lie/withhold information/refuse to compromise (with or without good reason). None of that is “unfair.” I can’t think of anything a party can do that would be “unfair.”
- Unequal disparity of dispute resolution resources between (among) the parties
- Person doesn’t have settlement authority [how often have you experienced this at Conciliation for example? Some cocky insurance representative stating “sorry I can only offer you a maximum of 1 hour per fortnight home help…”
- A party shows up without the authority/will/information to settle
- Misrepresentation or characterization of the case to their own client
- Is unwilling to listen to the other party. Can’t get off positions and into interests and needs
- Trying to “bully the mediator or other party – how familiar!
- A party is not a decision maker but represents him/herself as one having authority
- The more powerful party (like a big corporation or an insurance company!) overwhelms the little guy with nomenclature, laws, etc.
- Comes to mediation for other ulterior, reason, i.e., determine opponent’s bottom line, conduct discovery… Etc
- Because “good” is a relative term #6 is tough. A party who does not give the other party a chance at understanding the reason for their actions or lack of action hinders a fair/helpful/just process.
- Keeping information from a party that will directly effect a decision just because the other party didn’t directly ask for it when the ramification is known and obvious if the information were shared. Unknown ramifications for information withheld probably would not constitute “bad faith.” Unknown because communication is hindered by being stuck in a position, that is.
- It is only form to get to court–let the judge decide, they say
- Negative communication patterns continue; there is no self-analysis of what one contributes to the conflict
- A party declares that he/she has authority to settle when such authority does not exist
- Aggressive behaviour. More comprehensively – a party that does not do as it would be done by
- They take advantage of a power differential (i.e., the other party is emotionally weak, afraid, a victim of some kind of discrimination, etc.)
- Makes selfish, hurtful or threatening comments
- A Party acts unfairly when it refuses to settle because it wants to outspend its opponent in litigation or its lawyers want to keep billing their client, therefore they steer the case away from a fair settlement
- Manipulation of information, power, or communication process (verbal and non-verbal) – how TYPICAL!
You can read more about shocking bad faith claim practices by workcover insurers here
Further to John McPhilbin’s article about the Cycle of Despair, the model that we all believe offers a fairly accurate representation of what many injured workers are forced to endure in the dysfunctional workers compensation system, I’d like to briefly resummarise an article we posted on our forum about what a medium to severe injured worker typically undergoes and how they are affected within the first year(s) after a workplace injury.