By Simon Booth
The Nuances of Workers’ Compensation and The Victorian Ombudsman
“Sometimes the only barrier to an injured worker returning to work is the system that continues to reward them for being off work.”
– Simon Booth
Many years ago, during my days as a young, cocky Rehabilitation Consultant, I queried an injured worker’s doctor. Given the workers presentation and apparent limited dysfunction, why was the worker still off work. I received a shockingly honest response:
“Let’s face it Simon, if he wasn’t getting paid, he would be back at work.”
It is my personal belief (based on over 20 years in the industry) that there is a very small percentage of claimants in the Workers’ Compensation scheme that have absolutely no capacity for work.
Unfortunately, the system supports and reinforces incapacity and time off work, despite ever increasing knowledge that time away from work is harmful for the injured worker.
“…long term worklessness if one of the greatest risks to health in our society. It is more dangerous than the most dangerous jobs in the construction industry, or [working on an oil rig in] the North Sea, and too often we not only fail to protect our patients from long term worklessness, we sometimes actually push them into it, inadvertently.” Professor Gordon Waddell
Research1 has shown that time off work is self-perpetuating and the longer someone remains off work the less likely they are to ever return to work.
Both internationally and within Australia and New Zealand, there is growing awareness that long-term work absence, work disability and unemployment are harmful to physical and mental health and wellbeing.
Work absence tends to perpetuate itself: that is, the longer someone is off work, the less likely they become ever to return.
If the person is off work for:
• 20 days, the chance of getting back to work is 70%
• 45 days, the chance of getting back to work is 50%
• 70 days, the chance of getting back to work is 35%
This is a nuance of Workers’ Compensation that the Victorian Ombudsman Deborah Glass is either ignorant to or has chosen to ignore when she lambasted WorkSafe and their Agents in both her 2016 and 2019 reports.
I am sure that the Ombudsman believes that the influence she is exerting will be beneficial for the injured workers the scheme is designed to support.
However, as an outsider conducting a superficial review of the scheme, I would suggest that Ms Glass lacks the required understanding of the complexities of Workers’ Compensation to enable her to provide an informed opinion on the required changes to the scheme.
In fact, where Ms Glass’ recommendations are naively focused on having insurers cease their efforts to progress injured workers to return to work or exit the scheme, they should be focused instead on innovations to assist these same people in breaking the compensation cycle and returning to the work.
This will improve their physical health, mental health and overall wellbeing. Something that will not be achieved by perpetuating their time away from work.
This is the same problem the scheme faces from General Practitioners and other allied health professionals who are ignorant to the detrimental impact of continuing to certify their patients as unfit despite expert evidence to the contrary.
The Ombudsman’s lack of understanding of the health impact of being off work, and how it becomes increasingly more difficult to break the disability cycle as claims durations increase, displays a lack of knowledge of accepted research and evidence into personal wellbeing.
Colin Ahern’s (CGU EM Workers’ Compensation) response to the Ombudsman’s draft report explains it well:
“The draft report highlights and criticises the actions taken by Claims Consultants in trying to break the cycle of compensation and attachment to compensation entitlements, and in some cases those actions are highlighted in the report as provocative, unreasonable or inappropriate. However, the purpose of these actions is genuinely aimed to disrupt the compensation cycle and activate return to work opportunities.”
The Ombudsman’s own report lists two case studies (43 & 48) where the termination of benefits by the Agent led to the claimant returning to work.
In Case Study 48, the worker returned to work contrary to the Medical Panel’s conclusion that she “had a work-related mental injury and incapacity for work,” with the Agent pointing out to the Ombudsman that the claimant’s return to work was inconsistent with the information that she had provided the Medical Panel.
Everything I have read in the Ombudsman’s report appears focused on continuing to trap claimants in a cycle of inactivity, anxiety and depression, reinforced and supported by ongoing compensation.
This effectively creates a second welfare scheme in Australia and bringing with it the same fatalistic and problematic approaches and outcomes. The only difference is this welfare system will be directly funded by Victoria’s Employers.
I failed to identify any suggested changes that would actually provide a positive impact on claimants’ health and wellbeing.
Two examples where the Ombudsman could have made some positive and innovative suggestions to assist in returning people to work relate to her comments regarding doctor shopping and the approach of the medical panel.
1. Doctor shopping
In her comments relating to her perception of doctor shopping by agents and relying on Independent Medical Examiners (IMEs) over treating doctors, the Ombudsman fails to acknowledge that this works both ways. Agents and employers can provide numerous examples where an injured worker, having been cleared to return to work by their doctor, have gone to another doctor to gain an unfit certification.
NSW have addressed this problem with the concept of the Nominated Treating Doctor (NTD), a medical practitioner nominated to manage a claimant’s recovery from injury and to assist you in returning to work.
Under the NSW scheme an injured worker is required to seek approval from the insurer if they wish to change treating doctors and must have a valid reason such as:
- The doctor has moved or ceased practicing in their area
- There is evidence the management the doctor is providing is not helping with recovery or a safe return to work
2. Medical panel overrides capacity decision
The Ombudsman provides a number of examples where an agent’s decision to cease entitlements due to capacity has been overturned by the medical panel.
However, it is apparent that the medical panel looks past the injured worker’s capacity and takes into consideration the labour market and the prospect of employment for those over 55.
• A Medical Panel is unlikely to conclude a worker has capacity for suitable employment where they are over 55, their pre-injury job was physical, and they have limited transferrable skills.
*Victorian Ombudsman, “WorkSafe 2:Follow-up investigation into the management of complex workers compensation claims.” (2019)
I fail to see how sentencing someone to 10+ years of sitting at home is a positive of the scheme. Surely the Ombudsman could have suggested an enhancement of the scheme where injured workers over 55 with a capacity are not certified as unfit by the medical panel but instead provided with an intensive job seeking program specifically designed to address the specific barriers to re-employment faced by our aging workforce.
These are two alternate options that I came up with while reading the Ombudsman’s report, options directed at achieving return-to-work outcomes and improving the health and wellbeing of claimants. Options focused on treating Workers’ Compensation like insurance and not welfare.
If the Ombudsman’s focus is on the wellbeing of those in the scheme, doesn’t it seems obvious that recommendations focused on helping them re-engage with the workforce would be more beneficial than recommendations that will further reinforce their purported incapacity and absence from the labour market?
I have previously raised the failure of the Ombudsman to engage with the Victorian Scheme Agents as a significant flaw in her investigation. Imagine what could have come from this investigation had she included this critical step.
Imagine what could have been achieved if we had put the wealth of knowledge available in the Victorian scheme into a room to discuss the investigation outcomes (statistical issues and bias aside).
Imagine what could happen if the Victorian Government and WorkSafe paid as much attention to the opinions of those of us who have worked in the scheme for decades as they have to the naïve recommendations of someone with a superficial understanding of our industry, based on a statistically unsound and biased investigation.
Imagine.
1. ‘Australian and New Zealand Consensus Statement on the health Benefits of Work: Position Statement: Realising the Health Benefits of Work.’ (2011.) The Australian Faculty of Occupational & Environmental Medicine & The Royal Australian College of Physicians.
Disclaimer: This article provides general advice and should not be considered legal advice or an insurance consultation. You should seek appropriate counsel for your own situation. In addition, this post is directed at people in Australia. If you are outside Australia, please be aware that the circumstances in your own country may be different.
