The past fews days have already been so busy with many questions, horrible stories, and requests for help from injured workers. One seriously and desperately injured worker is looking for a(ny) way we can give him any tips to find legitimately illegal IMEs and treatment of workers? Obviously [this would be best done] anonymously, after the period of time when those injured workers are entitled to any further settlement.
A while ago, this anonymous injured worker wrote a Guest Post, which, I admit, has been sitting at the backend of this site for way too long!
My case Manager invited herself to my next GP visit
Hi I just today received a text from my RTW (S.A) case manager asking if she could attend my next GP visit. yes I was gobble smacked and straight away hit Google for an answer and stumbled on this page thank god.
I am now awake to my case manager and what she will do to undermine me whilst to my face acting like she is my best friend .
when I was first injured I was made by my employer to sign a form giving permission to talk to all my doctors and after reading this now realise it starts from when you make your first claim for workcover. thankyou for helping me to avoid having my privacy and we’ll being crushed and abused by a two faced devious insurance company.
Yesterday we received the shameful story of “Severely Injured” who, rightly, describes his Xchanging case manager as a crazy ex-girlfriend who went from my ‘new best friend’ to nothing short of a stalker. She
would ring the injured worker up to 8 times a day, and berate him, scream abuse, make outrageous claims – “I am stopping your payments, its up to me, and you are getting nothing, which is what you deserve”…Sound familiar? You bet! And here is what you can do about it!
We recently received an email from an injured worker stating that s/he feels that s/he is being harrassed and bullied by his/her workcover case manager. The injured worker wonders if there is anything s/he can do about this behaviour, besides engaging a lawyer.
The workcover insurance company (who is defending your workcover claim) has a right to have a doctor (an independent medical examiner) of its own choice examine the injured worker. The logic of this general rule cannot be questioned. However the manner in which so-called “independent medical examinations” (IMEs) are carried out is often fraught with controversy, and it’s important that you know that you can refuse to see a certain IME in certain circumstances!
Let’s face it, many injured workers are actively participating in various forms of social media for example through blogging, Twitter-ing, and Facebook-ing and are unaware that there are some serious downsides to this practice. Especially since our blog’s recent DoS attack, I have been thinking a lot about this topic and I believe it would be helpful to share some of my informed thoughts for injured workers using or considering a dive into the social media space.
Downsides of social media for injured workers
I know I/we have published many articles about the dangers of using social media [under keyword “surveillance”] whilst on workers compensation, but I believe that it is necessary to raise the downsides of using social media over and over again.
Following the severe DoS attack on aworkcovervictimsdiary’s site, I have been discussing the use and the dangers of “social media” with many informed people, including other injured workers who blog (and have had their site copied by workcover] and experienced lawyers. One such a discussion with a lawyer stood out:
Blogging, Facebooking, Tweeting etc really is forever
Even if you try to delete a single published post or an entire blog, a Tumblr site or Facebook page, it’s really very tough to delete all the references to the work/articles/comments etc that have been reprinted, reformatted or placed in an archived cache online.
In addition to that as the lawyer we spoke to stated: WorkCover and insurance agents frequently download Facebook pages, entire blogs, websites etc… in case the “evidence” is later deleted – so basically what we are saying is that YOU (the injured worker) have very little to no control about the content of your social media (even if you were to delete it, chances are that someone else has already shared or reprinted you “old” material and chances are that workcover or their agents have been crawling all over your sites and tweets and made entire copies of it!).
Dis you know that the map of a single tweet (see below) for example also exposes us, injured workers, to the reality of the internet: much more is contained in any post or tweet besides its content, for example information about the time, the computer type, and even the location.
When your publish a thought, article, comment on a social media platform, you are writing in pen (make that a an indelible marker!), not pencil! And, sadly, there is the real potential to take prose out of context (sarcastic or not) which could then have significant legal ramifications for those injured workers, especially those under “surveillance” and those in a (potential) common law damages claim .
In my couple of months writing (well, dictating and having just about all of my blog posts actually physically entered for me, in my case), I often think about this and wonder if the benefits I (and our co-authors) have garnered by sharing some of my/our [workcover] insights could be rendered mute by a single legal reference to this blog, or – perhaps worse – if somehow the contents of this site could be used against an injured worker.
Remember that just a few months ago the administrator of aworkcovervictimsdiary was threatened with a law suit for “defamation” by Allianz NSW and their lawyers. Obviously this was not about “defamation”, rather an intimidating attempt to shut is (authors, contributors, domain owner) up.
Whilst I/ we [authors] are not eligible for a common law damages claim, or involved in any court proceedings and certainly have nothing to fear from the insurance company or my/our employer; I am just imagining that – like some of you – =what if I/we was/were eligible, or in the midst of a law suit? What if I/we/you was/were currently under PI surveillance with a threat of cutting of my/our/your benefits (medical care or weekly payments), …
Is it going to bite you?
Perhaps you are blogging or tweeting or Facebooking just to socialise (fact is most of us, seriously injured workers, including myself, are socially isolated); or maybe you do it to show your “strength.” Perhaps you do it because you want to stand up for what you believe.
Social media is not a legally risk-free hobby!
Being a “blogger” I have learned to appreciate the power of social media. I have also learned that people who decide to attack bloggers/tweeteres who tell the truth -or who tell lies- risk being even more exposed themselves (this phenomenon has been dubbed “The Streisand Effect.”)
That’s because most bloggers to their homework and are careful to obtain background documents or refer evidence to support their commentary.
So if you’re going to do this social media thing seriously, you need to realise that it does have risks that you might not suspect or be aware of.
It would be good for YOU (all injured workers participating in social media) to review information offered by the Electronic Frontier Foundation. They have many helpful legal resources for bloggers there, new or old.
The Take-Home Message
Be very very careful of what you write, think about it first, back up with evidence if you can and do not get trapped in the Streisand Effect; for example do not IMPULSIVELY reply to some comments, tweets etc – do NOT lose your cool, do not get angry or upset and always word your blogs, tweets, comments VERY carefully [phrase it in such a way that if a PI our workcover agent were to read it, it can not be twisted or taken out of context].
A good example would be an injured worker writing on Facebook page that “they spent all day moving house” – this is a very poor choice of wording and it can be easily taken out of context (by workcover et al) finding that “if you can move house, you can’t be as injured/impaired as you claim to be”. So, in this example you ought to write for example “I spent all day moving house – well, my family, friends,… actually all came and packed all my belongings in boxes for me, how kind…” (If that is true obviously).
Another example: ” I am cleaning out the swimming pool” – whereas you actually need to write it as it is: ” my son, whatever, is taking the bugs out of my pool and I am helping where I can, whatever”. Another common one ” I had a drink last night…”, whereas you are really saying that you had so much pain, grief, wathever that you drank half a glass of red on top of your painkillers” – you see workcover et al does NOT know anything about you (personal life) and can so easily misconstrue a “case against you”, for example implying that hey, as you were drinking, you must surely have been partying like hell, and how can you claim to be depressed…
The great APS Dignity Blog – OZloop- alerted us viaFacebook to their most interesting article: The Australian Public Service (APS) Knows that Compulsory Psychiatric Referrals are Unlawful, Unethical and Abusive; So it is Now Time for a Class Action!
APS knows that compulsory medical and psychiatric referrals are unlawful
The Australian Public Service (APS) Knows that Compulsory Psychiatric Referrals are Unlawful, Unethical and Abusive; So it is Now Time for a Class Action!
Earlier, APS Dignity wrote about the use and abuse of compulsory psychiatric referrals under the Public Service Regulations 1999 as a victimisation tool against whistleblowers (that is, any APS employee who makes a complaint about a potential breach of the APS Code of Conduct), and how the Australian Public Service Commission and Comcare were complicit in this victimisation (see Australian Public Servants Subjected to Soviet-Style Abuse).
The humiliation, provocation and cruelty that some APS hired-gun psychiatrists have subjected APS employees to defy belief – ranging from unjustified antagonism and aggression directed at employees to verballing employees to make ‘confessions’ that they are adulterous and suicidal. APS employees have been left tainted with dubious and career-damaging psychiatric diagnoses, based on questionable evidence or no evidence at all. Needless to say, these employees are left highly traumatised.
The use and abuse of compulsory psychiatric referrals has been around for decades in the Australian employment landscape, being first brought to prominence during the early 1990s by Whistleblowers Australia. Yet, unfortunately, the situation is still very much the same (if not worse), and Australian politicians, human rights groups and the mainstream media’s interest has been noticeably lacking.
APS Dignity has been directly and indirectly in touch with many victims of compulsory psychiatric referrals and has been researching the legalities of the referrals, with the ultimate goal of helping victims to launch a class action against the Commonwealth of Australia.
There are various laws and codes that APS agencies may be breaching in directing or supporting (whether explicitly or implicitly) compulsory psychiatric referrals, as listed below.
- Regulations 29 to 31 of the Health Insurance Regulations 1975 specifically state that a valid referral to a specialist, such as a psychiatrist, must come from a referring practitioner (usually the treating general practitioner). There are no exceptions made to operate outside the scope of the Health Insurance Regulations 1975 when it comes to referrals to specialists.
- Clause 6 of the Institute of Australasian Psychiatrists’ Code of Ethics states that ‘it is unethical for a psychiatrist chosen by an employer to examine an employee who has been forced to attend’. APS agencies are effectively forcing employees to attend examinations under the threats of discipline or financial penalty.
- Section 10(1)(d) of the Public Service Act 1999 states that the APS ‘has the highest ethical standards’. Given that the Institute of Australasian Psychiatrists’ Code of Ethics makes it apparent that compulsory psychiatric referrals are unethical, then such referrals are inconsistent with the APS Values, which may be a breach of employment contract, and a breach of the specific torts of statutory duty and public misfeasance.
- Section 16 of the Public Service Act 1999 states that whistleblowers reporting potential breaches of the APS Code of Conduct must not be victimised or discriminated against. Where compulsory psychiatric referrals are used as a victimisation or discrimination tool (which will usually be the case), then this may be a breach of employment contract, and a breach of the specific torts of statutory duty and public misfeasance.
- Under defamation law, it is unlawful to communicate ‘material’, whether directly or by imputation, anything which has the effect or tendency of damaging the reputation of another by: exposing that person to ridicule; lowering that person’s reputation in the eyes of members of the community; causing people to shun or avoid that person; or injure that person’s professional reputation. Given that a psychiatric referral carries the imputation that an APS employee is mentally unstable, then unlawful defamation may have occurred.
- Section 340 of the Fair Work Act 2009 states that adverse action must not be taken against an employee who has exercised, or proposed to exercise, a workplace right. Thus, where a compulsory psychiatric referral is used as a victimisation or discrimination tool against a whistleblower, this may amount to an unlawful adverse action.
- Under section 15 of the Disability Discrimination Act 1992, it is unlawful to impute a mental disability on an employee. Given that a psychiatric referral carries the imputation that an APS employee is mentally unstable, then unlawful disability discrimination may have occurred.
- When a compulsory psychiatric referral is used as a victimisation or discrimination tool which results in the employee suffering psychologically and emotionally, then this may be a breach of the specific torts of duty of care to provide a safe system of work and intentional infliction of mental harm and emotional distress.
- Under section 5 of the Administrative Decisions (Judicial Review) Act 1977, it is unlawful to exercise a discretionary statutory power in bad faith or unreasonably, or in a way that constitutes an abuse of power. When a compulsory psychiatric referral is used as a victimisation or discrimination tool, then there may be a breach of these administrative principles.
- Under Information Privacy Principles 7 and 8 of the Privacy Act 1988, APS agencies have an obligation to ensure employees’ recorded personal information is accurate, complete and not misleading. Under Information Privacy Principle 11 of the Privacy Act 1988, APS agencies must seek consent before disclosing employees’ personal information to a third party. Where an APS agency’s briefing to a psychiatrist about an employee contains inaccurate, incomplete or misleading information, and an employee’s personal information is disclosed without their consent, this may be a breach of the Privacy Act 1988.
- Under Information Privacy Principles 1 to 3 of the Privacy Act 1988, APS agencies must not collect personal information unlawfully and unfairly, and must not intrude unreasonably on a person’s personal affairs. The Privacy Commissioner has issued guidelines stating that Information Privacy Principles 1 to 3 may also be breached where personal information is collected by: asking a person many times for details; interviewers insulting or intimidating people; or asking for information in ways that might unnecessarily embarrass a person. Where a psychiatrist that is contracted by an APS agency asks unnecessary intrusive questions of an employee and collects personal information of an employee in an unfair way, this may be a breach of the Privacy Act 1988 and the specific tort of invasion of privacy.
- Where an APS agency directs employees to stay away from work (at the employees’ own expense) until they attend a psychiatric examination, this may be a breach of the evolving common law right of an employee to perform work (see, for example, the case of Quinn v Overland  FCA 799).
The position of the APS on this issue, as conveyed by a senior APS lawyer in a recent ‘off the record’ conversation noted below, paints a disturbing picture of the mentality of APS bureaucrats who perpetrate these abuses.
- Compulsory psychiatric referrals are likely to be unlawful, unethical and abusive, but this does not matter as they can be masked under the guise of ‘care’ and ‘concern’. This is all part of ‘playing the game’ and whistleblowers should learn to join in with ‘playing the game’.
- It does not matter how unreasonable compulsory psychiatric referrals are because the APS is ‘big’ and ‘unmoveable’, and even if the matters were taken to court, the APS can hire barristers to ‘butcher’ employee litigants in the witness box.
- Whistleblowers must bear the burden of ‘proving their sanity’ (which means criminals are granted stronger rights than APS whistleblowers, as the former group enjoys the presumption of innocence until proven guilty and, if they choose to claim insanity, it is not imposed on them).
- All APS employees who have had compulsory psychiatric referrals are ‘losers’ and deserve what they get.
An enlightening comment posted on the APS Dignity blog – and which sounds all too familiar even for us ordinary injured sods under workcover- states the following:
The Hired Gun psychiatrist – based on one person’s experience of group bullying (mobbing) in the APS
In Australia, psychiatrists enter into an APS workplace as hired guns, with their implied or verbal brief often being to further abuse an already bullied staff member or to medicalise an existing industrial dispute, so that one side of the dispute can be labelled with a medical condition.
This enables those APS bullies, who prefer a negative leadership style, and those others, who are unable to manage and/or resolve issues constructively, for whatever reason, to arrange and participate in the bullying of their work colleague – under the guise of “reasonable administrative action”, “duty of care”.
Their work colleague is usually hard-working, enthusiastic, knowledgeable, conscientious individual, who gets a sense of satisfaction in doing a good job and adding value.
APS staff who participate in group bullying (mobbing, scapegoating) are usually reliant on their being able to work against their colleague behind the scenes and to rally others to their cause – via email, for instance, usually having some kind of semi-legitimate sounding reason for involving others in these types of communications.
Secrecy is important to them. They use emotion-laden, defamatory language when discussing their colleague, and spread rumour, unsubstantiated allegations and hearsay, in order to undermine their colleague and portray their colleague to others as having no redeeming qualities. They even downgrade and devalue their colleague’s achievements, skills and abilities.
Not only participating in it, but also exposure to it, helps institutionalise these ways of behaving as being the norm. Bullying helps spread fear and anxiety throughout the agency. Mobbing (group bullying), is sometimes described as a cancer that spreads like a virus through the workplace.
So their colleague becomes “the problem”, not the bullies. They deny that they’re the problem i.e. they externalise the problem: It’s nothing to do with them. Others believe them because they want to believe them. It’s too hard to make a stand as they may be next on the bullies’ hit list and it’s much easier on their conscience to think that their colleague is deserving of this treatment.
Escalating bullying over a period will eventually cause their colleague to become ill.
What are exclusionary factors? Some exclusions apply in relation to Comcare e.g. if a person is significantly distressed due to workplace factors and simultaneously performance management action is being undertaken, then the employer will likely argue that the performance management action is reasonable and the target is distressed due to it. This will be a major obstacle for her getting Comcare, as she will first need to prove that the performance management action is not reasonable administrative action. And this will involve huge additional costs to her in terms of her health, wellbeing and finances, often at a time when her cognitive functioning is seriously compromised due to anxiety and depression resulting from the bullying.
The bullies may focus on something minor about her work performance and on this basis initiate performance management action, even though this treatment of her is unreasonable and unfair and is markedly different (i.e. much less favourable) from that they would show towards their other colleagues. Comcare will then disallow her claim, and she will need to seek a review, and then most likely go to AAT (the tribunal). So she may be forced into a situation where she needs to take a package or resign due to poor health and finances.
The mob mentality in this type of situation is all-pervasive, as a kind of mob hysteria often takes over the bullies’ way of thinking and acting. They are in this together. Procedural fairness, integrity and conscience are given short shrift, as the bullies prefer to take matters into their own hands.
Their colleague may even be unaware that performance management action has been initiated and only discover this later, when she seeks Comcare or obtains her personnel records.
So the first exclusionary clause and obstacle to their colleague’s health and financial recovery is in place.
By this time HR has become involved.
Their colleague’s resilience and “audacity” in trying to remain at work, or return to work after a break due to illness, would be likely to prompt the bullies to up their game. They would do this with the help of HR.
Enter the hired gun psychiatrist.
This is the bullies’ trump card. The bullies hope the hired gun will find the prospect of abusing and destroying their colleague an appealing one, at upwards of $2,500 at each opportunity to do so. Other incentives too: the chance to drum up more business, plus a bit of a trip away thrown into the bargain.
The hired gun psychiatrist is useful to workplace bullies, on a number of fronts. A true hired gun will help legitimise the bullying as well as help vindicate the bullies’ actions (those who have any conscience or self-awareness), and will shift “the blame”.
These psychiatrist hired guns basically have no accountability for their behaviours or for what they write in their assessments i.e. they can make false assertions, not record and relay accurately what the bullying victim has communicated to them, not follow their profession’s ethical guidelines, not follow relevant expert witness codes of conduct; and yet, escape accountability for any of these untoward behaviours.
The worst apparently that can happen to them is that a judge may discount their evidence, for example, and not take it into consideration.
The official port of call to lodge a complaint about a medical practitioner varies from state to territory. But whether or not any of these bodies can do, or have the resolve to do, anything to curb the activities of these legitimised bullies is doubtful. AAT evidence suggests that one particular agency’s preferred hired gun psychiatrist has been at it for years.
One of the hired gun psychiatrist’s main uses is their enabling APS bullies to work around the APS Code of Conduct i.e. psychiatrists can actually take over the mantle of bullying of their colleague. And this is what many of them would appear to be proficient in, and also enjoy doing.
The psychiatrist’s report is often abusive in itself, evidencing that neither the psychiatrist nor the employer has any respect for the bullied colleague’s dignity and humanity. His report may also fail to contain any reasonable medical argument, and the psychiatrist may make claims that he is unable to substantiate and may even state the bullying is all in the person’s mind and is due to her having a “personality disorder” (not the bullies).
Some hired guns favour the diagnose of personality disorder, especially in cases where the bullied colleague is so distressed and ill that she is unable to defend herself against hearsay, unsubstantiated and/or unreasonable allegations that are communicated from the bullies to HR and then on to the hired gun.
If the hired gun’s evidence is that their bullied colleague suffers from a “personality disorder”, and the GP’s is something else, then this would usually mean that Comcare would disallow her claim for a psychological injury, initially. The onus would then be on her to provide further evidence of the psychological injury and/or prove that her response to actions/workplace events would be within the bounds of normal behaviour by a reasonable person (one without a personality disorder) when faced with similar circumstances. This will drag out the Comcare process and expose her to further illness. She also may need to “play the game” by engaging her own psychiatrist – which is costly as she may even be on unpaid leave. And of course many people don’t like psychiatry per se. And who could blame them after their hired guns experience.
The hired gun’s diagnosis of personality disorder, when received by HR, may be passed on to the bullies in her workplace – in breach not only of the agency’s policy but also potentially in breach of the Privacy Act. She may already be so injured by the bullying that she doesn’t feel that lodging a complaint would be a possible option. A reasonable person would most likely perceive HR’s actions to be bullying.
Administrative processes are geared against her to ensure that she remains isolated and sick. She may by now completely broken and unable to return to work, with or without compensation.
Another HR technique may be to phone the psychiatrist and tell the psychiatrist that his report is not clear enough. A hired gun has been known to amend his report materially, on the basis of this type of discussion (prompting?) by HR. This would be a breach of the expert witness code of conduct in relation to the provision by an expert of a medico-legal report.
But what would have happened in the event the psychiatrist is sympathetic to the plight of the bullied staff member?
What would happen if a psychiatrist strongly suspects what is occurring and is not devoid of moral conviction and chooses not to participate in the workplace mobbing?
In all likelihood the ethical psychiatrist would be pushed e.g. HR and the bullies would make up a story something along the lines that his reporting and recommendations are never clear enough, and this information would be fed back to the company for whom he contracts. This would be one way to get rid of reasonable psychiatrists and ensure that the ones who remain on the circuit are hired guns. The same HR actions would apply to ethical rehabilitation providers as well.
In the interim, the ethical psychiatrist who has seen the bullied employee, for less than one hour, may be hounded by HR and bombarded with questions, which require him to write supplementary report after supplementary report. It is most likely hoped that the ethical psychiatrist will eventually just cave in or slip up as a result of this and give a “right” answer i.e. something that could be used against their targeted colleague by the bullies. In their phrasing of a particular question, HR may prompt the ethical psychiatrist to answer a question in a particular way.
Bombarding a psychiatrist with more questions is also a means to delay their bullied colleague’s return to work or send her back to the unsafe workplace, in particular i.e. where her GP is recommending a transfer to a safe working environment.
So, after unreasonable delays where, contrary to best practices in relation to rehabilitation, she may be kept out of the workplace, with only token efforts made to return her to a safe working environment, time rolls around and once again the bullies decide to flex their muscle by coercing her yet again to be assessed by a psychiatrist.
By this time they go directly to the psychiatrist who they can rely on to give their preferred diagnosis. Enter the hired gun psychiatrist, the one with the reputation for giving diagnoses which are at odds with other medical experts – and presumably the one with the pre-arranged diagnosis of personality disorder.
I too would never have believed it, until it happened to me.
Read more on the APS Dignity Blog including Calls for Expressions of Interest for Class Action against Comcare which can also be views on the impressive APS (apsbullying.com) website
Thank you to APS Dignity for allowing us to publish and share your fabulous article.
Industrial tribunals have repeatedly criticised employers over botched investigations or their failure to investigate workplace incidents, including bullying. Acumen Lawyers practice director Brad Petley told attendees at a recent “how to conduct effective workplace investigations” webinar, hosted by OHS Alert’s associate publication HR Daily,that a properly-conducted investigation could be the key to your organisation’s success in averting or defending a prosecution or claim (that’s right, DEFENDING a prosecution!).
One of Petley’s messages is that “bullying complaints should never be “off the record”, and serious investigations should never be discussed at a coffee shop” – helooooo!!!
Conducting workplace investigations: how it should be done
According to the Hr Daily, every HR professional will face a serious workplace incident at some stage in their career. Will you know exactly what to do when confronted with a harassment complaint, a theft allegation, or an OHS event?
The webinar How to conduct effective workplace investigations which can be purchased in full concluded with a question and answer session and the following transcript contains lawyer Petley’s answers to eight critical questions.
1. What is the role of a “support person” in investigation interviews?
The role of a support person is to provide emotional support for someone being interviewed.
We’re talking about misconduct meetings, not informal counselling; a serious meeting to determine allegations of misconduct or perhaps gross negligence or something like that.
Sometimes a person may turn up to a meeting and might want to bring their lawyer. It needs to be made clear that their role is as a support person and that person’s witness. [It’s not] some sort of mini hearing where the person present stands up as an advocate and starts making submissions.
The caveat is that the role of a union representative, their right to represent an employee is recognised in the legislation, so [employers] have to be very careful about trying to limit their behaviour.
Those sorts of things should be sorted out before the meeting commences.
2. Do witnesses in an investigation need an offer of a support person?
Not unless for their emotional wellbeing it appears necessary. [WTF – we believe every person under “investigation” needs a support person and that this right should be made very clear and even encouraged!]
3. Is it best to conduct investigations offsite, onsite, or at a head office?
Full-blown investigation issues should never be conducted in a coffee shop. [WTF – helloooo!]
At a multi-site employer, usually it’s best to [hold investigation meetings] at head office, but it depends on the circumstances and facilities available.
4. What if bullying is alleged and the witnesses want to talk to the investigator “off the record”?
It often happens. Another way of saying this is, “I want to tell you what’s happened, and I want you to do something about it, but I don’t want to be involved, I don’t want to be responsible and I don’t want anyone to know I’ve said it”.
That can’t happen[ whaaaat?]. The employer needs to explain to the employee that it is bound by legal obligations to all employees and say, “We need to get your version so we can do something about it”, and inform them about how they’ll be supported.
It may be that the person doesn’t want to say anything further. Then it may be time for refresher training [around bullying] in the workplace, monitoring of people, and being mindful of that [alleged bully’s] interactions. [Talking about coercion???]
5. If a voice recorder is used during interviews, does the recording then need to be transcribed and a copy given to the employee at the centre of the allegations?
That recording is the employer’s record of the meeting. If that matter proceeds to an unfair dismissal meeting and there’s some dispute over what was said, that audio recording could be tendered in evidence and played to the industrial tribunal. [Seems like all people being “investigated” need to be aware that they may be recorder – make sire you ask!]
There is no obligation to provide a transcript [wow… are we talking about hiding the truth just in case?]. If a request for one is made, that request should be assessed at the time.
6. What should an employer do when it believes the respondent to a complaint might be suffering from a medical condition that affects their conduct at work?
You have to look at the factual circumstances of the matter. [Do you] just have a personal view that the person is not quite right, or is there other information that, for example, the person is bipolar and not taking their medication as they should? [Oh dear, here we go again, blame the victim and label him/her as unstable, rrright!]
Unless they have a medical qualification [managers] can’t make those decisions. Any suspicion has got to be backed by medical evidence if they wish to act upon it.
7. Are there any legal guidelines around what “undue delay” means?
If a matter needs to be investigated an employer shouldn’t necessarily bring their business to a screeching halt because of it, but the fact that someone is suspended doesn’t mean [they can think], “I can take my time on this one, we’ll get back to him in a fortnight’s time”.
If a person has been suspended, they should know their next step.
8. Once a decision has been made, should that be provided to the employee in writing?
Once a decision has been made it can be conveyed verbally, and that can be read out to the person, and then the actual sanction can be confirmed in writing.
Certainly an interesting “webinar”, it appears to us that it is geared towards protecting the employer (and not the victim) and again shows the so often encountered bias in those “investigations”… an this is how investigations are supposed to be conducted? Did I miss something?
The more I think about how to describe what it is like to be a medium to severely injured worker on workcover, the closer I get to a description: it is war! It shouldn’t be a warfare -or better yet: an Asymmetric Warfare- but it is , this is what becomes because you will find yourself being attacked from all angles, even if you are certified seriously injured and are complying with everything they demand, and you will need to continuously fight for your rights and benefits, for your medical care and for any other -like service. This leaves many injured workers frustrated, mentally (and physically) exhausted, and totally disillusioned. I can’t help it but conclude that this warfare is done by design, as to make it as difficult as possible for injured workers in order to make them give up. Never ever give up!
Being on workcover is war
From my own experience of dealing with workcover and from the many stories I have heard and read through interactions with this site, I made a list of things that you should never expect and things that you should always expect when medium to severely injured and on workcover.
When on workcover never ever expectRespect
Workcover, insurance agents, case managers and in many cases you employer will never show any respect for you, simply because by having suffered an injury in the workplace you become the enemy. You become a liability, both for the insurance agent and for the employer. In other words you cost money, you are out to “milk the system”, looking for a free holiday, a malingerer and a fraudster. You are guilty and are blamed for your injuries.
Have you ever noticed that if you keep your cool, not show emotions, and not abuse or use profanity in conversations or emails, they don’t know how to deal with this? Case managers are used to abusive injured folks (I know it’s very hard to keep your cool and wits as they will push your buttons) and they will classify those injured workers as emotional, nuts, or “difficult” and this gives them even more power and control over you. This phenomenon is also known as asymmetric warfare – that’s right: WAR!
Tip: Try to maintain control, be careful with the language you use in all communications – I am not saying this is easy as your adversaries (i.e. case manager) will push your buttons and trip you up…
Be careful with the use of language also in emails or letters. I believe emails are the best way of communication because you can make a draft, then reconsider what you are going to say, ask and modify and change it perhaps after a few hours or a night’s sleep. Always make a draft first and wait a while before you review it, so that you can edit it and ensue what you wrote/write is carefully put together.Integrity
What bloody integrity? Integrity is defined as a concept of honesty, consistency of actions, values, principles, methods and outcomes.In ethics, integrity is regarded as the honesty and truthfulness or accuracy of one’s actions. Integrity can be regarded as the opposite of hypocrisy. Injured workers’ adversaries (case manager, insurer, employer, so called “independent” doctors etc) will never make an effort in exercising integrity.Professionalism
When you first get injured and at first point of contact “they” appear to be professional, at least on the surface. But this “professionalism” fades away the longer you remain injured and unable to return to work… and they will actually start treating you with contempt. Isn’t it interesting that although “professionals” (i.e case managers, even IMEs) are for example bound to strict codes of conduct, they will soon become unethical and immoral? And injured workers are supposed to trust these people?Assistance, help or support
Fact, case managers (and any other adversaries) will do the very minimum of “work” possible – their priority is not to assist injured workers but to process endless paperwork, which is usually full of errors.
Tip: Please remember to read any and all “paperwork” you receive – just about every single letter I have received from workcover et al. contained errors. All documents are considered legal and can be used in a court of law!
Do not fall for their “games” i.e if they continue to harass you for paperwork, forms that need to be filled out or signed and returned by a certain deadline. Keep asking questions, don’t sign or agree to anything until you are absolutely certain that there are no breaches or violations of your rights (you would be surprised how many rights you could sign away).Consistency
Case managers are well known to say they will do something but then either not do it or do the opposite. How many times have you been told that the payment will sent weekly, but then it’s sent fortnightly. Question them and they’ll tell you it’s supposed to be weekly. How often have you been told that the cheque has been sent? Only to never arrive? How many times have you been told that “approval” has been given for a service or equipment, but then you never receive the actual approval letter? You will soon realise that it is not so much a game but mostly sheer incompetency.
Tip: when any adversary (i.e case manager) phones with questions or instructions, or if you phone them, always remember that those calls are recorded “for training and what not purposes”. Always, always ask them to email you with what was discussed or email them back after a call with what YOU understood what was discussed (and agreed to) and always, always ask for confirmation. I personally always take (well, took, for I have my case manager(s) on restraining order) notes and then email them back with confirmation of what was discussed.Honesty
From my personal experience I can honestly say that “they” all lied and lie to me. For example my RTW coordinator (employer) would tell me they would keep in contact, never happened. The case manager would tell me an MRI/whatever was approved but I never receive notification in writing. My employer would assure me that suitable duties would be organised for me and that I would have ongoing work, only to turn around and tell me that there are no suitable duties or unlawfully sack me because of “impairment”. How many times have you endured such examples?Logic and or Intelligence
How often have you noticed that for example your case manager does not abide by common practice or even the workers compensation legislation? Have you ever had a logic conversation with your case manager? I certainly believe that case managers truly lack a certain level of intelligence required in their “field of expertise”.Rights
When I was first injured, my rights were never ever explained to me, where they explained to you? Fact is that I had to go online to find out what my rights were, only to find out that my rights were breached over and over again. They either don’t care or are not properly trained (or both more likely) and will very seldom consider your injured rights – maybe they do this to keep “control”? Have you ever compared a reference to the workers compensation legislation stated on a letter you received from a case manager, with the actual legislation? You would be surprised how often the legislation is “loosely” interpreted and/or adapted to their need.Duty of care
To be honest, my employer did not give a damn about me once I was injured. My case manager also did not give a damn about me and the fact that I kept re-injuring myself over and over again at work (“suitable duties”) because my employer didn’t give a damn about getting my medically prescribed and over and over requested ergonomic aides in the workplace. Whilst I had to undergo massive surgery just about every year, sometimes twice a year, to try to reconstruct my re-torn arm again, nobody gave a damn. The insurer never even questioned why I needed 7 massive reconstructions over a 5 year span “whilst at work in suitable duties”. No phone calls from the employer or insurer, no emails to see how was doing or progressing after each massive surgery, or to ensure that my rights were being observed or simply to see if I needed any support or assistance.Concern for your wellbeing
As stated above and in addition, my employer for example cut off contact completely and so did my case manager, they simply had no idea and could not care less about my condition or how I was coping and whether I needed anything. Once thrown on the scrap heap (sacked as too impaired) and unable to return to any form of work for the foreseeable future, the real nightmare began, where my case manager for example would start to deny me basic medical care, cut off my physio therapy, attempt to cease my psychology therapy, deny or delay further urgent surgery, MRIs, home help, etc.
fact is that many, if not all workcover insurance companies and their case managers treat us like criminals and in fact by doing so are negligent to the point of putting our very lives at risk.
When on workcover always expectTrickery
Again, be very careful what you say during phone conversations – they are recorded and can be used against you. Also be extremely careful of “independent” medical examinations or insurers doctors/specialists as most are adversarial – their agenda is simply to prove in any way they possibly can that you are not as injured as you say you are and to discredit you.
Insurance carriers and their case managers in particular will often say one thing but then actually do another or the opposite. When you question them you will find that they (most often) do not really answer, but resort to their famous “mmmh”. If you ask a question an the answer is avoided, simply persist and force them to answer by using techniques like asking the question again and for example adding to it “is this correct yes or no?”; “I understand from what you are saying that blah blah, is this correct, did I understand it properly, yes or no?” etc. And as stated above always, always follow up all conversations with an email, to confim what was said or stated during the conversation (i.e. “I refer tom out telephone conversation – date-time – and understand that -blah blah – please confirm”)
This can be very draining, exhausting, frustrating, but unfortunately this is necessary and part of the warfare. Please persist.Harassment
Most injured workers that I know, including myself are continuously harassed and even intimidated by their adversaries. Be it the case manager or the employer or a rehab service provider.
Examples include being harassed to return to work, even though you are medically certified unfit for all and any work; being told that you should not need to see a psychologist “because you can talk to your case manager”; being harassed to follow another “therapy”, i.e. discontinue osteopathy and see a physio as it “works better”; rehab providers telling you that if you do not [do this or that] the insurance company will be “displeased”; rehab providers ringing you every day to “make sure you don’t forget to have your workcover certificate status/restrictions “changed”; and let’s not forget the harassment re independent medical examinations for “objective assessments” all the while sending you to a proctologist (bum doctor) when you have a head injury etc etc.
I certainly keep questioning my employer’s, my case manager’s and my previous rehab provider’s medical competence or medical qualifications, in continuously giving me “advice” to the “best treatment” of my complex injury.Entrapment
It didn’t take me long to realise I was much better off not to communicate via telephone with all adversaries and stakeholders because just about everything I said would be twisted and misconstrued. Best way to communicate, as stated above, is by email – that way all is clear, transparent and you have logs to show that the email was sent (as opposed to “Oh I did not receive your letter… blah blah”).Mistakes and “oversights”
As mentioned above, letters from insurance companies and your case manager are just about always erroneous – eve n basic stuff would be wrong such as the date of your injury, your actual injury (in my case I still suffer from a “bruised shoulder” – what a joke!). Try to have the letters corrected as all letters are legal documents which can be used in a court of law. Or follow up with email and refer to the mistakes and “oversights” in the letters you received.
Same apples to medical reports from “independent” doctors – have you ever received one that stated the truth and that was entirely correct? I keep being gobsmacked at the amount of “mistakes” such medico-legal reports contain! I remember on of them stated I was a “heavy drinker” – ha, me who does not even drink beer or wine ever! Another one stated my injury worsened because I fell on a beach (WTF!) whilst I had explained that shortly after I had had a reconstruction I was in a sling and walked on the beach and NEARLY lost my footing and my sling (with my arm in it) moved a bit forwards and I had quite a bit of pain from that movement… Another one stated I was on medication which I was not on etc etc. Rrright. Again it is very important to have medical reports corrected. Read them thoroughly, find the errors and fax or write to both the insurance company and the medical assessor and request an amended copy. They will often not even bother to reply to you, but at least you will have evidence that you sought an amendment/correction and that the information was wrong.Breach of legislation
How often has your case manager, insurance company or even your employer breached the legislation? Rrright! Make sure you have a copy of the relevant workers compensation Act and that you study it as best you can. Refer to the Act over and over again and point out their breaches.
A good example perhaps is that insurance companies will go to great length to try and obtain ALL your medical information, all your medical history, including how many PAP smears you had. They are only allowed the information that is relevant to your injury, nothing more.
Another frequent example is breach of conciliation outcome certificates. Report it to the workcover authority.Hostility
How many times have you been treated with contempt and hostility? Take for example case managers not answeing your emails, not reimbursing you for medication accounts etc stating that they did not receive your receipts, even though you may have sent them via registered post a few times. How often has your case manager ignored requests for treatment, MRI, CT, physio, personal care, equipment? Rrright.
How often have you been told for example that they have “all the rights” to obtain ALL your medical history? Did they ever tell you that they would assist you with your rehab and return to work… did it happen? Did you also end up self-funding for retraining or training courses? Did you buy your own ergonomics for the workplace?
Have you ever received a torn or split envelope containing copies of your PRIVATE medical reports? They simply don’t care! Arrgg!Being misled
From my experience, they will just about always attempt to mislead you about just about anything. For example once I asked about my rights regarding physiotherapy and whether approval had been given, only to be told that the request for physio 2 x / week is “excessive”. Same with counselling. They deliberately mislead you into believing that certain treatments are restricted whilst the fact of the matter is that if your doctor/specialist prescribes daily physio or 3 x week counselling, then it should be approved. There are no limits, it’s about standard therapy for certain injuries and you are entitled to whatever your doctor says you need. Don’t be fooled.Disengagement
Been ignored by your employer? Refused assistance with return to work? Refused assistance with your rehabilitation? Well, I can certainly say that I have been totally ignored on many many occasions by my (now former) employer since I was injured…Never ever give up!
(Post pre-dictated and entered on behalf of WCV)
When you’ve been injured on the job, you will -sadly- encounter a whole new world of workcover insurance related hurdles in obtaining your prescribed medical treatment. The fact of the matter is that the workcover insurance company will try to -and often does- totally control your medical treatment at all stages.
The reality is, most companies don’t utilise floor and space planning companies such as iMedical Space Planning, and as such, they inadvertently create unsafe working environments for the staff. As such, the below article will help in case if you experience an injury and are seeking medical treatment.
Obtaining medical treatment under workcover can be a full time job
When you’suffered a workplace injury, you will -sadly- encounter a whole new world of workcover insurance related hurdles in obtaining (appropriate) medical treatment. This includes all of your work injury related treatments such as medical care, surgery, radiology (MRI, CT scan), home help, home modification, hydrotherapy, physiotherapy, psychological treatment etc etc.
Unfortunately it is not always as easy as heading to your (nominated) doctor for a referral.
The reality is that the insurance company, through its non-medically trained case managers [and nurse case managers in some states], can and will contact and even coerce your doctor(s) – and they’ll do it often.
They do this for various reasons, such as to see if you really need to be off work for the next couple of weeks, or whether you need that MRI now as opposed to, for example, three months from now; and whether you really, really need that prescribed physiotherapy etc. If they can’t coerce your doctor(s) into “adapting” your certificates, agreeing that, hey, you really do not need physio (as you can hop on your home bike), you do not need a particular treatment, even surgery; then they will sent you to an “independent medical examination”; preferably a well known biased and pro-insurer one (oh yes, they have lists of such IMEs) for “objective assessments” in the hope of hopes the IME complies with the insurer and amends fitness status, treatment requirements etc. If that still doesn’t work, doctor shopping will start, until such a time as they do obtain what they’re after.
The best advice we can give is that your doctor can be your biggest ally in a workcover claim. Unfortunately not all injured workers’ doctors are standing up for their patients and many do buckle under the relentless pressure, intimidation and harassment from case managers.
Whilst the insurance company has the right to pick your IME doctor, it cannot disagree with the recommendations of it’s own authorized doctors (IMEs) just to cut costs or end treatment.
You will not earn respect if you do now show respect.
Here are a few tips with dealing with your own doctor(s), such as your nominated doctor and/or insurance doctors (IMEs):
Try to be assertive with your doctor, IME etc. but not aggressive
When dealing with your [allocated/nominated/local/ specialist etc] doctor and his or her office staff, It’s important to try to be assertive, but not aggressive.
There is a difference in not taking no for an answer, and yelling at the Doctor or the receptionist. Make a polite but assertive effort to explain your problems to the doctor, don’t allow your concerns to be glossed over, but remain patient and remain cool. If you’re concerned about the doctor sending you back to work too soon, explain why you cannot perform your job – don’t tell the doctor that he or she isn’t in the one in pain.
Remember that this is a kind of “process”, and that it may take several visits with a doctor to obtain the results you’re looking for.
It is important to be assertive when dealing with the doctor. This means making certain that you tell the doctor all of your complaints even if you don’t feel you need treatment for a specific body part. Part of the process of visiting a doctor is to document the nature of your injuries, which leads to proper diagnosis and better treatment. Often an injured worker will focus on the part that’s hurting him or her the most and gloss over or shrug off lesser problems. The problem is that if the doctor doesn’t know about a particular problem, it is very difficult to come back and treat it later. Telling the doctor all of the problems as a result of your injury will protect you down the road, if the insurance or employer tries to deny part of your claim. These problems can include things like depression, anxiety, PTSD or other injured body parts.
We believe it is a good idea to do some research about your injury or condition before and during treatment. A little knowledge will help you understand the doctor. For example, you should ask if there are options other than surgery, whether it might be time for a CT or an MRI, or a referral to a specialist.
It’s really not helpful to question your doctor’s credentials, judgment or ability to make a decision – this aggravated many doctors/IMEs. Ask questions designed to explore all treatment options and scenarios. You may be right about a treatment option for example you researched, but if you alienate your doctor, you could be or get in trouble.Never ever go alone, bring some support
It is always extremely helpful to bring your significant other, a an advocate (i.e your psychologist), friend or loved one to the doctor’s office.This is particularly important so that your support person can be a witness of what is done and said at the visit.
They can also help make sure the doctor understands your problems, but they need also to make sure it does not lead to a confrontation. It is hard for someone who cares about you to remain patient when they do not feel the doctor is giving you appropriate attention, but again they need to remain objective, calm, patient but assertive. All kinds of bad things can happen when the doctor is ganged up on and backed into a wall.
Be direct with your doctors, but not confrontational – nobody wins if that happens. If you are still having issues obtaining your entitled medical treatment, seek legal advice and/or remember that you can always appeal a denial of medical and like service/treatment. For example in Victoria you can lodge a conciliation dispute within 60 days of receiving a rejection/denial letter.
If you are injured at work, you have the right to medical treatment provided by your employer or their insurance company. They must pay for whatever treatment is required to cure or relieve the effects of the injury.
However, they do have the right to direct you to an independent doctor (IME) of their choice and you must go to their doctor. If you do not go to their doctor, you risk paying for medical treatment out of your own pocket as well as losing compensation for any lost time from work.Make sure the doctor know what you are doing for a living
Strange as it may seem, what you do for a living has an impact on the nature and quality of your medical treatment. If you work in a physically demanding job, or a job that requires others to depend on you for their health and safety, it is important that the doctor know. It makes a difference to the doctor what has to be done to return someone to work in a sitting job versus someone who needs to return to work in a physically demanding or a job that involves a safety risk. It may also impact how long you are kept out of work and also determine the nature of the treatment you may need to restore function.Be very specific about light or suitable duties
Often while providing medical treatment for a work related injury, a doctor will consider the possibility of releasing an injured worker back to work on “light duty” (suitable duty). This can be a good idea because studies have shown that the longer someone stays out of the work environment the more difficult it is to return.
But, before a doctor releases you to light duty, make sure he is specific about the restriction. A doctor who merely writes on a slip of paper “light duty” will find that the employer generally does not honor the restriction because, frankly, the employer does not understand the restriction. Therefore, make sure the doctor’s restriction is as specific as possible. If the doctor says no prolonged standing at a job, he needs to spell out how long you can stand. If the doctor puts a restriction on how much weight you can lift, then he needs to spell it out specifically in terms of how many pounds you can lift. Once he does that, make sure you keep a copy of the restriction and carry it with you in the event that your employer does not wish to honor it.Don’t treat your own
Treating through your personal doctor(s) and billing your private health insurance may seem like a good solution – this is a bad idea. You can wind up personally responsible for hundreds or even thousands of dollars in medical bills. Over the years, private health insurance carriers have included language in the policies excluding payment for work related injuries. Insurance carriers have also become far more aggressive in recovering monies they have paid directly from injured workers. If you go out on your own, you can end up responsible for the medical bill.
The Workers’ Compensation Courts [Conciliation and Medical Panels and court] do allow remedies if medical treatment is not provided. A request for medical treatment can be filed with the Workers’ Compensation conciliation in the first instance as long a it is supported by a doctor describing that the treatment is needed. If an insurance IME makes a treatment of recommendation that the insurance company refuses to follow, the Court [conciliation -> medical panel -> court] may also grant an Order compelling the insurance company to provide this treatment even without conducting a hearing.