Our health care systems in Australia have faced enormous challenges in recent years. The challenges posed by COVID-19 have received much of the attention since 2020, but even before many health care systems were stretched.

Prior to COVID, in my home state of Tasmania, “Bed Block” and ambulance “Ramping” were an outward sign of a Public Hospital system under stress. The increase in elective surgery waiting times, an external manifestation of system malaise. Perhaps, even then, the system was close to losing its’ “fitness for purpose”.

Pre-COVID, hospital managers had identified the need for Occupational Medical advice for Heath care Workers at the front line due to the mental health challenges posed by Bed Block & ramping, but little was done at that time.

The precursors of this “decompensation” of our health care systems have been present for some time:

• an ageing population;
• increasing incidence of mental health disorders; and
• escalating chronic disease rates associated with obesity and type 2 diabetes.

In the background I suspect there is an assumption that our society should be able to provide universal health care irrespective of cost. This assumption, combined with the historical perspective that a primarily hospital-based system attuned to provision of acute care could deliver such care. This places a high level of expectation on the public health-care system.

An additional Tasmanian factor is regional parochialism, creating pressure to duplicate facilitates regionally, despite major improvements in emergency transport negating this need for emergency medical care.

Governments at both a State and Federal level have shared funding including various short-term quick fixes, targeting electorally visible problems, but a more general system overhaul is overdue to target underlying trends and issues that are the genesis of this emerging lack of “fitness for purpose”. Dual accountability for funding dilutes responsibility for planning, service delivery and outcome analysis.

Doctors, allied health staff and their support staff are the very essence of the healthcare system, but are now at risk.

Central to this evolving crisis is the dwindling resource of the health practitioners themselves. Metropolitan:Regional, Rural & Remote (RRR) workforce imbalances, significant shortages of GPs along with what has become known as “burnout” of frontline hospital staff has compounded the difficulties with planning and service provision.

The health of our health workforce is at serious risk!

Our news feeds are increasingly filled with stories about health care worker shortages, burnout and dissatisfaction. The keynote address at WorkSafe Tasmania’s Annual Conference, by Dr Amy Imms was entitled “Workplace Burnout: Prevent, detect, manage”. This presentation highlighted the impact on individuals, workplace and the community generally from the high incidence of workplace burnout. The aim of the presentation was to raise awareness of the burnout phenomenon, and provide relevant skills to people in the workplace.

Tasmanian Premier and Health Minister Jeremy Rockliff recently announced financial and employment-related measures to address healthcare workforce shortfalls with incentive payments and guaranteed employment for newly graduated nurses, but will these measures address the underlying factors causing the shortage?

The problem is not confined to the health sector, with teachers and other critical service providers affected.

Professor John Wilson quoted in a recent ABC News article,

“It’s at a stage now where practitioners, not only in medicine but also in nursing and allied health, are all thinking, ‘Why am I doing this? It’s not actually good for my health, and may in fact be dangerous,'” 

Fears of mass exodus of hospital workers as doctors and nurses face burnout

What is Occupational Health?

According to the ILO and WHO, occupational health is “the promotion and maintenance of the highest degree of physical, mental, and social well-being of workers in all occupations by preventing departures from health, controlling risks and the adaptation of work to people, and the people to their jobs.” This definition reinforces the importance of prevention rather than reliance on reactive strategies i.e. treatment and rehabilitation.

The Australasian Faculty of Occupational & Environmental Medicine (AFOEM) expresses its purpose in the following terms:

“To promote the health and well-being of workers, healthy workplaces and good work”

Many of the current challenges facing health care organisations are person centred relating to individual health or interactions with others, rather than relating primarily to ‘traditional’ physical, chemical or ergonomic risks within a workplace. Current challenges include:

• degenerative disease related to ageing and pre-existing conditions:
• unsatisfactory or stressful interpersonal interactions in the workplace contributing to mental ill-health; along with increased workplace demands; and
• the increasingly blurred line between personal and work-related conditions

To address these issues requires a greater emphasis on health of the worker in their occupation to complement management of workplace risk with advice from safety professionals.

Occupational Health Services

The health and well-being of healthcare workers (or any other occupational group for that matter) is primarily an occupational health issue. This is best approached by a fundamental re-appraisal though an health-focused lens of relevant individual, workplace and societal factors. This can include analysis of accident/injury and absenteeism rates, measures of productivity, psychological health & satisfaction surveys and appraisal of workforce turnover rates with emphasis on direct involvement in the workplace. To develop appropriate strategies requires not only information about the problem but a deep understanding of mechanisms of disease and ill-health and application of the principles of managing risk and ill-health. Like any workplace strategy, it has to be lead from the top and utilise the right expertise, summoning the power of workforce consultation to fully understand the actual issues in each workplace.

Relevant strategies to enhance occupational health include both prevention and management of the health issues facing the healthcare workforce coupled with effective monitoring systems to evaluate the measures put in place.

Examples of “Health-First” initiatives include:

• Development of non-adversarial clinical pathways to manage injury and illness causing work incapacity (irrespective of cause)
• Programmes to improve the health and resilience of the workforce (both physical and psychological)
• Investigation and management of specific occupational risks, whether “burnout”, infection risk or a specific physical or ergonomic hazard.

Who has the background, qualifications and expertise to lead?

ILO Recommendation R171 spells out the expertise required for occupational health services. Multidisciplinary teams are critical important:

• In accordance with national law and practice, occupational health services should be made up of multidisciplinary teams whose composition should be determined by the nature of the duties to be performed.
• Occupational health services should have sufficient technical personnel with specialised training and experience in such fields as occupational medicine, occupational hygiene, ergonomics, occupational health nursing and other relevant fields.
• The occupational health services should, in addition, have the necessary administrative personnel for their operation.

Medical Practitioners trained in Occupational Medicine have the expertise to solve the problems facing healthcare workforces with a holistic “Health First” approach, reversing recent trends giving priority to claims reduction or artificially separating psychological and physical factors and seeming to prioritise legal strategies over health. There is a need to turn thinking on its head i.e. we shouldn’t be asking how we can best reduce numbers of claims rather:

“How can our various systems, including Employee Support and Rehabilitation Services, Human Resource Policies, Personal Leave Systems and Work-related Compensation Schemes best support recovery and return to work?”

Who better to lead strategy development and provide guidance to a health-care system than medically-qualified occupational experts?

Specialist Occupational & Environmental Physicians – Fellows of the Australasian Faculty of Occupational & Environmental Medicine (AFOEM) within the Royal Australasian College of Physicians (RACP)] are the most highly-qualified experts in the field, best placed to lead teams including occupational therapists/ergonomists, hygienists, nurses, physiotherapists, rehabilitation counsellors and safety practitioners.

Why haven’t many organisations heard about Occupational & Environmental Physicians?

I am most familiar with the situation in Tasmania, but the trends observed locally have been mirrored around Australia (and overseas too). Focus on cost-cutting and efficiency by government and private organisations, combined with a lack of obvious new occupational health threats (at least until recently) are important factors. A colleague recently suggested that OEPs are victims of their own success with an overall reduction in workers compensation claim numbers (although claims durations and the numbers of stress claims have risen significantly in the same period).

Over my 30 year period of practice, I have observed:

• WorkSafe Australia no longer employs in-house occupational medicine specialists
• Government organisations rarely retain in-house medical advice of any sort
• The Defence Department no longer funds Occupational & Environmental Medicine (OEM) training for its doctors
• There is no hospital-based training for Occupational & Environmental Physicians (the traditional location for most specialist medical training)
• Government Funding to train specialists in non-hospital settings (STP Funding) is virtually non-existent or allocated to other specialities
• Very few Government hospitals retain Occupational Physicians
• What OEM expertise exists is diverted to determine liability in cause-based compensation systems rather than research, strategy development, prevention, educational and treatment activities.

It is critical that Occupational & Environmental Physician-led, Occupational Health Units be re-established within government organisations to provide a focus for training of relevant specialists, raise awareness about how such expertise can provide solutions to Occupational Health challenges facing healthcare and the workforce more broadly and provide relevant clinical services.

My next article will makes the case for re-establishment of Occupational & Environmental Medicine (OEM) expertise within Government at both a Federal and State level, using Tasmania as a case in point.

Over the last 10 years or so I have witnessed a significant upward trend in requests for the provision of complete copies of medical files from a third-party i.e. a party outside the primary doctor:patient relationship.

I have previously written (Justice and Harm Minimisation – Is that possible?) about situations where there is a legal requirement to release files, but “voluntary” requests are more common in my experience.

Increasingly insurers, particularly insurers that hold income protection, life or TPD insurance, and sometimes motor accident scheme insurers (but rarely, if ever, Tasmanian Workers Compensation Insurers), request copies of entire medical files. It has become less common for insurers to seek a formal report or ask for specific information, such as details of a specific medical condition or information about capacity to work.

Requests for file copies are usually accompanied by a relatively non-specific consent to provide medical information in event of a claim.

I have no firm basis for an opinion about the extent of this change, or the reasons, but my observations suggest.

• Medical Practice software in almost universal use, means consultation records, referral letters and investigation results are type-written and stored in the practice software database. This facilitates the provision of full electronic file copies, and forwarding to another party “at the touch of a button”.

• Some doctors, or at least the entities that own the medical practice, see the sale of medical of medical information as a valid income generating activity, particularly in an environment of corporate medical practice where the focus is on efficient scheduling of a doctor’s consultation time to maximise income, leaving little administrative time for doctor’s to undertake non-clinical activity, such as the preparation of formal reports.

• Doctors can be reluctant to write reports, whether due to disinterest, a perception that the activity doesn’t contribute to health outcomes, concerns about wasting time or insufficient remuneration. This can contribute to third party motivation to request file copies, rather than seeking a formal “purpose-specific” report.

I suspect however that the above factors are probably less important than the recognition by the insurance industry and other third parties with a business interest in medical information, about potential advantages from an insurer perspective, as follows:

• Seeking a file copy is a faster option to obtain information, actioned as an administrative task, rather than having to rely on a doctor’s response
• The administrative task of producing a copy of the file, is likely to be less costly that seeking a formal report requiring professional time
• The third party has the opportunity to look through all the detailed information to determine what information is relevant to their needs, rather than relying on the doctor’s interpretation
• Complete file release overcomes any potential for adverse medical information to be hidden from the third party or any selectivity by the treating doctor about the information presented in a formal report

Third parties, I suspect, often lose sight that the primary purpose of medical records is to assist the treating doctor manage treatment as an “aide-memoire” and as a communication tool between practitioners involved in treatment. The main purpose of records is not to provide an account of treatment for the benefit of authorities or third party business interests, although legal decisions tend to reinforce the importance of these secondary purposes.

Routine provision of medical file copies to non-medical organisations , however raises a number of concerns:

• The doctor who compiled the records and is aware of clinical background which might not be recorded on the file, can potentially provide information of greater relevance to the matter being investigated
• The records are not intended for interpretation by non-medical entities, leaving scope for misinterpretation, particularly of consultation notes
• Medical files accessed and copied to third parties, might be held beyond the period necessary creating an unnecessary risk of inappropriate access or disclosure
• There are concerns about security and access restriction on records, particularly when they are not under the control of a doctor who has primary ethical and legal responsibility for patient confidentiality
• The records might be utilised for activities outside the scope of their original provision

The most significant issue, in my view, is that the practice of providing entire file copies, undermines the whole concept of a confidential medical file and the “doctor-patient” relationship. With widespread accessing of files there is potential for patients to lose trust and might not divulge important information to their doctor, for fear of adverse consequences and doctors themselves might adopt less that satisfactory record keeping and fail to record important information in the file if concerned about loss of confidentiality.

Like most things it should be a matter of balance. Very few would argue that the Law Enforcement Officers should not be able to examine a detailed medical file if the information has reasonable prospects of solving a case of serious criminal activity or where the safety of the wider community is at risk. The widespread “trading” of medical files to assist insurers defend claims seems inappropriate to me, when there are alternative ethically sound and less intrusive means of obtaining necessary information.

Requests for copies of entire files by income protection insurers has become widespread. I have developed a practice policy that reinforces the privacy of medical records and states the preference for provision of a purpose-specific report provided there is an informed purpose-specific written consent provided by the person. The circumstances where a full copy might be released are spelled out in the policy.

Recently there has been an increase in the number of commercial entities that offer services to insurers to obtain medical information (including release of complete file copies) from medical practices, increasing the commercial interests from the release of medical file information. The businesses that have offered such services over many years have recently been joined by larger corporate providers of independent medical advice offering enhanced processes to retrieve medical records from medical practices. I believe that is an adverse trend.

What is the appropriate response to these trends?

• Medical practices need to develop policies to communicate their stance in relation to file access and requirements for consent
• Doctors responsible for patient care need to be involved in assessment of any risks involved in the release of medical records
• Where insurers (or brokering entities) make reasonable requests for reports with an appropriate consent, these requests be met by the practice within a reasonable timeframe at realistic cost
• Publicity about the negative aspects of complete file release

I would like to raise awareness of the trend for medical records to as a tradable commodity and the downside of that trend

I am interested to hear the perspectives of others on this matter.

COVID19 & Co-operation

I have completed, at least for this weekend, my Tasmanian winter time duty of replenishing our household firewood supply, splitting delivered firewood logs – using a powered log splitter nowadays. While working at that task, I have been able to reflect on the events of the last few weeks. I had been working on another article, about alternatives to our “cause-based” compensation systems, also relevant to COVID19, but there a lot more work to be done on that one – and hopefully the time to do it.

COVID-19 dominates the news and affects almost all our activities to some extent, even though Tasmania is not currently in lock down as they are in Victoria. There has been considerable local interest watching the Victorian situation develop with understandable concern about the effects of COVID19 on the people’s health and well being. There is also the negative impact of COVID19 response on mental health, lifestyle and we mustn’t forget, the economy.

COVID-19 presents challenges but we shouldn’t overlook the opportunities to do things differently, and perhaps better. We have observed a reduction in adversarialism in our political system (although that is waning) and locally I have observed a more co-operative approach within the health care and compensation systems within which I work.

My occupational medicine colleagues (the few of us that remain in Tasmania) have been very collegial with a renewed enthusiasm for our work, even though most of us are in “the twilight of our careers” as Barry Gilbert put it. There have been very positive interactions with colleagues within our national professional body – the Australasian Faculty of Occupational & Environmental Medicine (AFOEM) , including our new President, Malcolm Sim and president-elect Warren Harrex along with colleagues from Victoria. I would particularly like to thank John Parkes who have given up time to share his experience with the COVID19 outbreak in Melbourne (again via Zoom).

This collegiality, in combination with the rewards of being involved in the training of an enthusiastic and committed registrar in my own practice and interaction with employers to facilitate educational visits to workplaces, has been a great boost for me personally.

COVID19 has also demonstrated what we can do on-line, saving time along with greater convenience and reduced use of fuel to travel, with potential spinoffs for our stressed planet.

From my perspective as an occupational physician, the emergence of COVID19 is an “unprecedented” (yes, I am becoming tired of that word too) occupational risk, as demonstrated by the, now officially acknowledged, high rates of occupationally-acquired infections amongst Health Care Workers in Victoria. This heightened risk is greatest for workers in Aged Care.

I am pleased that the Tasmanian Foundation for Occupational Medicine – TFOM (of which I am Secretary) with Barry Gilbert as President and Andreas Ernst as Treasurer, has taken up the issue with Government and plans to engage with the private sector to provide support and assistance for planning in the event of a second COVID19 wave in Tasmania. With another prominent occupational physician, Helen McArdle as AMA president, we can expect improved understanding of occupational issues generally.

I have taken a step back from medico-legal work over the next month or two to use my time on important prevention and educational initiatives as well as my personal need for a break from the demands of this type of work.

During this period I hope to have time to do further “professional writing”. I hope to have time for further work on a study, with the aim to publish in the peer-reviewed literature. The study, an analysis of legal decisions related to upper limb pain in a sample of Australian workers compensation jurisdictions, is being conducted with support from Genevieve Grant at the Australian Centre for Justice Innovation at Monash University. Another enjoyable collegial activity!

As well as working on my own practice’s COVID19 preparedness, I also hope to continue my advocacy in relation to the importance of privacy of medical files through relevant medical organisations. Comcare has a routine practice of summoning entire medical files that, in my view, is an unnecessary adversarial practice.

Masterclass Webinar Series

Over the last fortnight I have participated in two Zoom educational sessions run by the Australian Insurance Law Association (AILA). I might not have been able to attend if they had been run as face to face sessions. As Zoom presentations, they were accessible and informative, as well as great value for money.

The sessions I attended were the last two sessions of the 2020 Workers Compensation Masterclass Webinar Series. The first session Preventing Secondary Psychological Issues presented by Jennie Cox & Dr Rob Walters and the second session Chief Commissioner’s Choice presented by Alison Clues, Chief Commissioner of the Workers Rehabilitation and Compensation Tribunal.

Although Jennie Cox’s part of the presentation was limited by technical difficulties (the down side of remote communications), Dr Walters was able to articulate the principles involved in reducing the potential for secondary psychological claims through communication between the stakeholders to enhance worker support. He emphasised:

• the first contact by the employer is vital
• the expectations of parties need to be clear; and
• Communication, Communication, Communication

Chief Commissioner Clues shared her view that Tasmania’s Workers Compensation system cannot be characterised in the same way as the Victorian and New South Wales systems as portrayed on the recent Four Corners Programme “Immoral & Unethical”. She cited Tasmania’s 90% acceptance rate for claims. She indicated her support for the current Section 81A process (The legislative provision that allows insurers to dispute their liability in the early stages of a claim) as being much better than the absent process in the old “1927 Act”, where an insurer just “stopped paying” without having to explain.

Commissioner Clues emphasised the importance of communication with workers by employers, insurers and legal representatives to explain the 81A process and avoid anxious and distressed workers attending 81A hearings only to be told that the details of their case can’t be heard at that stage. She also alluded to worker concerns that claims can be disputed on the basis of an IME examination where they were not listened to or properly examined.

Commissioner Clues emphasised the value of Worker Assist as an free accessible source of legal advice for workers and agreed with a session participant’s suggestion that WorkCover should provide a clear explanation of the 81A process to aid worker understanding.

While I am in hearty agreement with Commissioner Clues about the need for communication and explanation to injured workers in the lead up to an 81A hearing (and indeed at all stages of the claims process), what I don’t think the legal system sees at times is the angst for workers injured at work about whether to initiate a claim for workers compensation due to the stigma, potential cost and a real concern about prejudice by prospective employers should they initiate with a claim. Workers (and their doctors) also see the frustration  when recommended treatment is held up or denied due to legal processes. Only occasionally do these issues seem to get aired in the Tribunal.

Communication between insurers, legal professionals and doctors also rated a mention. Commissioner Clues emphases the importance of asking relevant questions of expert witnesses, especially in relation to the “three-limbed” pathway to liability:

Doctors working in this area of practice need to take this on board as much as the lawyers asking the questions of them.

I gained a lot from the AILA Masterclass even though its intended audience is lawyers and claims managers – not doctors. Another example of the value of communication!

Comments about Adversarialism

In my earlier article THE GREAT DIVIDE – a sorry tale of lost teamwork! I lamented the situation with a progressive slide towards division and adversarialism. I now have renewed hope as a result of recent events as described above.

My father used to explain to those who asked him about his son’s occupation that I worked in “Preventative Medicine”. This was based, I suspect, on my account of prevention initiatives from my time working with the Hydro-Electric Commission (The Hydro) in the 1980’s and 1990’s. The Hydro developed innovative programmes for the time, Tasmania’s first “Smoke-Free Workplace” and innovative policies in relation to rehabilitation of workers. The policies encompassed employees unable to work for any health-related reason (not just work-related injury), in combination with innovative leave provisions to reduce absenteeism. Perhaps nostalgia has got the better of me, but I miss those days. It is much easier to be collaborative in prevention than it is with sorting out liability or compensation.

Unfortunately current work for occupational physicians relates almost entirely to reactive activities  to determine liability, impairment and compensation, often very late in the course of a claim when there are entrenched positions and no winners, although some would argue the lawyers always win!

History buffs can correct me, but my recollection from learning Modern History at High School was that German unification at the end of the 19th century was only possible because of a perceived or actual external threat from neighbouring countries. Perhaps the threat imposed by COVID19 can act as a catalyst for a reduction in adversarialism in the same way.

A spirit of cooperation in conjunction with a renewed emphasis on prevention and occupational medicine shifting back into the prevention area (where it rightly belongs) would avoid the acrimony associated with attribution of cause/blame and the financial consequences of that process.

Communication is the key, not only between workers and employers, but between :

• Treating and assessing doctors
• Defendant and plaintiff lawyers
• Doctors and insurers
• Private and public sectors
• Lawyers and doctors
• GP’s and specialists
• Unions and employers

The message also applies to politicians of various persuasions; the list goes on and on.

The AMA has recently had a favourable response to a request to re-establish a consultative forum with private Workers Compensation Insurers in Tasmania, The WorkCover Board has a Medical Advisory Panel and the Law Society has established a working group to look at better ways for lawyers and doctors to interact. I have had renewed contact with former colleagues working in on prevention initiatives and dialogue with government is improving! This all gives me hope.

Communication needs to cut across the adversarial divide that dogs our compensation systems and degrades optimum outcomes. Political ideologies and professional disciplines need to respect each other – plaintiff and defendant lawyers, insurers and doctors need to communicate. Heaven forbid, such a change might translate to communication between IME assessors on either side of the liability divide and old rivals work together for the common good.

Or

Perhaps I should just take my “reality pill” and get back to work!

In my October 2018 article Time to Revisit “RSI”, I referred to a literature review I had conducted. What the review highlighted was the need to try and replicate some Danish studies that suggested many cases of upper limb pain related to computer employment represent Brachial Plexus Neuropathy and that a careful clinical assessment can reliably identify such conditions. Previous studies exploring a causal association between upper limb pain and computer work have been dogged by the lack of a specific verifiable diagnosis in a significant proportion of cases to make firm conclusions about causation.

This article is about my journey since I have prepared and disseminated that review.

As explained in the above article, the motivation to conduct the review was in response to my ongoing interest in the subject since the time of the “RSI Epidemic”, my observation of frequent wide divergence in opinion between medical experts and the high level of disability I observed affecting workers (particularly young workers early in their careers) seen at my practice. There did not seem to be any recent publication looking globally at the issue. Arguments before the various courts and tribunals seem to be waged between very disparate medical viewpoints often referring to only a very limited number of publications or “learned opinions”, many of which dated back 20 or 30 years.

It became clear to me after presenting evidence before the AAT in relation to specific cases, that there was little published recently that explained theories of causation in an organised manner. A senior legal practitioner indicated to me that there would be value in a publications on this subject, emphasising the importance to publish through a respected research / academic institution. Unfortunately, I had not been able to identify an academic institution with a specific interest in this subject. Hence, when an opportunity arose through a request for literature on the subject from a plaintiff legal firm, I look the opportunity to undertake an initial review of relevant literature. The literature review was only ever intended as a starting point, with a view to a more comprehensive review and eventual publication in some form.

Since preparing the review, AAT Member Mark Hyman in Skobelkin-Mulcair & Comcare 2019 (CSIRO) has reinforced the need for clarity:

“…..it is not helpful to a decision-maker to have medical evidence that represents what appears to be the poles of current opinion, rather than to hear from doctors who are prepared to debate the possibilities and not leap to certainties”

The review included literature on a wide range of topics I considered were relevant to the topic, but there was no suggestion the review was an academic systematic review capturing all the literature and analysing such literature in an organised and systematic manner.

While I spent about 50 hours of my time reviewing literature and preparing the report (with some administrative support from my practice staff), my academic colleagues tell me to conduct a proper systematic review on even a narrow subject requires an order of magnitude (500 hours +) greater investment of time. The title:

UPPER EXTREMITY DISORDERS AND COMPUTER WORK – A clinician’s focused literature review in relation to a neurological explanation for non-specific upper extremity disorders and the relationship to use of computers

was intended to convey this was a review by a clinician, not an academic, and not a systematic review of all relevant literature – a virtually impossible task.

A peer-reviewed journal editor told me that to be published in that space you need to have conducted a systematic literature review.

Leaving aside the impracticalities of having the necessary amount of time in a busy clinical practice, obtaining funding to prepare even the limited review or a small clinical study, is also difficult in my experience.

I accepted an offer of part-funding from a plaintiff legal firm. That lead to expression of concern that I was conflicted by virtue of the funding arrangement. I expect however that no matter the source of funding, there will always be a concern that the funding arrangement might skew the outcome. Even Government, should they contribute funding, might have an interest in the outcome one way or the other given the large number of government employees in computer-based employment and government underwriting of the social security system.

Since I prepared the literature review, I have disseminated my conclusions through various channels:

• Hobart workplace rehabilitation provider educational meeting
• Occupational Physician meetings in Canberra and Hobart
• A presentation for workers, lawyers and insurers in Canberra
• Reference to the review in various medico-legal reports I have prepared

Mostly comments I have received could be summarised as “mmmm…Interesting”, but very little critical analysis by any practitioner who can demonstrate an understanding of the literature and familiarity with the condition. An occupational physician did alert me to another possible biomedical explanation for the “RSI” phenomenon, that I wasn’t previously aware of, so some value has come from the dissemination process so far. I did receive a blunt, almost rude, rebuttal of my review from a practitioner who referred only to one or two very outdated low level evidence documents, but not much gained from that.

Recently I was gratified to receive more constructive feedback demonstrating relevant literature knowledge. While the thrust was to reject my analysis and conclusions, I welcomed such feedback to enable consideration of a wider range of evidence that I had not considered.

I recently read Work-related Musculoskeletal Disorders in Australia. This report was prepared for Safe Work Australia by Associate Professor Jodi Oakman, Dr Rwth Stuckey and Dr Sam Clune at the Centre for Ergonomics and Human Factors, La Trobe University. There is little in the report directly relevant to the subject of the literature review. The authors do state however:

Some other points of note in Table A.10 are that ‘repetitive movement, with low muscle loading’, a primary focus of intervention advice for many years (Safe Work Australia, 2018c), is a relatively uncommon mechanism in relation to the body stressing category, with Clerical and Administrative workers (not surprisingly, considering their work tasks) most commonly (20%) experiencing this mechanism within their body stressing group, followed by Labourers (10%).

My (obviously anecdotal) experience is that many workers with computer associated chronic pain do not make claims because of the associated stigma of these disorders. While the official statistics that include this subject suggest only 5-10% (or 20% in office-workers) of work-related MSDS’s are due to ‘repetitive movement, with low muscle loading’, the lack of a category for specific computer-associated disorders, limited reporting and inordinate levels of disability often affecting young workers, suggests this area is receiving less attention that might be warranted in terms of real impact on workers and their work capacity.

My anecdotal view of the relative importance of this subject is perhaps reinforced by the number of disputed cases of upper limb pain related to computer work that continue to appear before the AAT each year.

I am hoping with availability of the literature review more widely (click on the link in the first part of the article), I will receive more feedback from a variety of sources with links to evidence that have a bearing on the subject. Perhaps an academic institution will become interested.

Yes, the literature review is not systematic and my view of the literature is coloured by clinical experience, but I remain of the view that it is a useful starting point and valid conclusions are presented. I think clinical experience in managing these conditions is an asset rather than a liability as it provides first hand experience about the natural course of these conditions and responses to various treatment and psychosocial variables that abound in our compensation systems.

I am working on a second version of the Literature Review and look forward to receiving further constructive critical feedback either via comments from other practitioners who review my opinion in the context of specific cases or more general feedback.

Please comment below, email me at peter_sharman@me.com or even give me a call on 0419881519.

Another year draws to a close. What can we learn from the world to enhance workplace health and avoid adding insult to injury? Here is my philosophical take at year’s close.

A month ago Deborah Glass declared elements of the Victorian WorkCover system “Immoral and Unethical”  while Gary Fettke continued his crusade about the evils of Sugar and “Big Food” in relation to threats posed by diabetes  and obesity. Even a blog about health issues in the workplace can no longer ignore the emerging climate catastrophe and associated Rising Sea Levels.

GLASS

The Victorian Ombudsman, Deborah Glass recently released her second report into the Victorian WorkCover System declaring that her first report barely scratched the surface. With its focus on long term injured workers, the report –   WorkSafe 2: Follow-up investigation into the management of complex workers compensation claims highlighted the dysfunctional behaviour of WorkSafe Agents in a financially driven system to the detriment of the health and wellbeing of injured workers.

I don’t propose to rehash the findings, rather her most important conclusion about the inherent conflict generated by the way the system operates and what might be done about it. She states:

While the Glass report and many commentators focus negatively on the behaviour of the people administering claims within the system, I think that focus is misplaced and inappropriate.

It is hardly surprising that individual claims staff act the way they do, sometimes with apparent callous disregard for the wellbeing of workers, when the system isolates them from workers and measures their performance using financial outcomes and artificial RTW goals.

Such a system creates a WorkSafe Agent (or insurer) workplace culture that reinforces negative injured worker stereotypes and sucks out any empathy. While more senior management might express a claimant friendly narrative, usually there is tacit management approval for profit-friendly actions. With all these factors operating, it is surprising to me that as many decisions made by claims staff actually do support and assist with the recovery of injured workers, as they do.

The occasional exposure of inappropriate claims decisions by an Ombudsman’s Report is unlikely to change an entrenched culture reinforced by many factors.

Don’t blame claims officers – most inappropriate behaviour is the product of the system!

The development of attitudes by claims staff to injured workers might be an example of what Zimbardo tried to demonstrate with  The Stanford Prison Experiment.

SUGAR

Tasmanian Orthopaedic Surgeon, Gary Fettke has been vocal in a campaign that highlights  Big Food’s role in spreading misinformation about the role of dietary sugar in chronic disease, particularly its’ role in obesity and diabetes . Without analysing the details of this important issue, this example services to illustrate the potential for an entire generation of health professionals, advisory bodies and government authorities to become falsely convinced about health risks of certain food types with disastrous consequences for public health. Gary highlights how commercial interests can influence scientific conclusions and the systems in place.

RISING SEA LEVELS

While this blog does not normally provide commentary on the debate about environmental issues, it has become such a critical issue for mankind, I will reverse that policy, at least for this article. The science is clear – the effects of man-made rise in CO2 levels on our climate are uncontestable and present an existential threat to many species, including our own.

What is not known accurately is the speed of changes, at what point we reach a “tipping point” with acceleration of trends that become obvious to everyone, everywhere and perhaps most significantly the unanticipated social and political consequences of a changing climate and inundation of low lying areas by sea level rise – not only the direct health consequences. We can debate whether this is a climate “Emergency” in the medical sense, but it is obvious that immediate action is needed by those in control.

While I accept the need for all citizens to do their bit i.e.  to Think Globally – Act Locally the reality is that is that for meaningful change, the system, lead by governments around the world needs to be changed to achieve the necessary change. The Australian Government needs to more than pull its weight globally, given our relative wealth and our per capita contribution to global CO2 emissions.

LEADERSHIP, LEGISLATION AND CULTURAL CHANGE

Whether the objective is better outcomes for injured workers, downward trending national obesity rates or arresting atmospheric CO2 rise, the solution is not to blame individual behaviour.

It is not the primary responsibility of the claims officer, the person with diabetes or the average citizen of the Earth to reverse the trends. The solution is to change the system with a legislative framework that supports a culture that changes and supports individual behaviour that in turn reverses any adverse trend.

We need leaders in politics, government, community and business who understand the evidence and can act for the good of all with agendas for long-term change supported by legislation, irrespective of the issue. Only through changes to the system will cultural shift be achieved that can cause widespread change in individual behaviour.

The same applies to silicosis risk, but that is a topic for another day!

In my article late last year, Time to Revisit “RSI”, I referred to several legal decisions in the AAT relevant to this subject, concluding that not a lot had changed since the 1990’s in relation to the confusion that exists about these conditions, not only in terms of determination of causation, but the very existence of these types of disorders as a physical entity.

During 2019 that confusion has continued, as illustrated by decisions made by the AAT.

In Yasmin and Comcare (Compensation) [2019] AATA 15 (10 January 2019), Woodfield and Telstra Corporation Limited (Compensation) [2019] AATA 1473 (26 June 2019) (a case where I was a witness) and Aylett and Comcare (Compensation) [2019] AATA 1474 (26 June 2019), the decisions were not in favour of work causation, but in another 3 cases the outcomes were more favourable for the worker.

The evidence presented in the above decisions reinforces the confusion that reigns in terms of diagnosis, causation and terminology.

I am presenting an Information Session entitled “What happened to RSI – Upper limb pain in the context of computer work – an occupational physician’s 30-year perspective” in Canberra on 09 October where I will further dissect the recent AAT legal decisions and present my summary of the evidence-based literature relevant to this subject and propose some better diagnostic terms.

I hope to meet Canberra-based health and law practitioners, employers, workers and insurers claims staff at that session. I expect there will be some interesting discussion about this controversial subject. I look forward to meeting those who can attend. I do not like to create a cost barrier for dissemination of information and regret that there is a charge to attend the session, but other sources of funding to run such sessions are few and far between.

Carver and Comcare

I recently published an article, Privacy of Medical Records – What does a recent AAT decision mean for patients and doctors? in the new O.M.I.T. (Occupational Medicine in Tasmania) newsletter. The article refers to a recent AAT decision (Carver and Comcare (Compensation) [2019] AATA 1534 (28 June 2019) about insurer access to medical files via summons.

In that article I summarised the main messages for doctors and highlighted some of the implications for medical practices where insurers invoke compulsory mechanisms through the courts to gain access to medical files.

The AAT decision drew a distinction between  a doctor’s professional duty and a legal duty, in the following terms:

“There is, in my view, a distinction between what doctors are required to do to discharge their professional duty to patients or to practice according to standards expected by the Medical Board of Australia and that which is required by law when served with a summons” 

It would seem to me that doctors are legally required to act professionally and if there is validity to the above statement, the boundaries between practicing legally and practicing professionally need to be explored further by the medical profession.

Objecting to a Summons or Subpoena

In my experience summoning of medical files is becoming much more common, but at present the practice seems confined to Commonwealth jurisdictions. Well almost, soon after my initial draft of this article, I received a “Notice to Attend” from the Tasmanian Workers Rehabilitation & Compensation Tribunal (TWRCT) to produce a patient’s file.

My practice files have been summoned 5 times in the last year or so. In two of those cases, the patients file had previously been summoned. Due to my concerns, I have explored the legal system response to various approaches to legally opposing the summons.

While I have been obliged to provide my file to the relevant Court/Tribunal in each case, I have had variable success with my objections to the release of consultation notes, particularly that they be withheld from the insurer involved.

Firstly, questioning the validity of a summons duly issued by a Court or Tribunal does not appear to be an effective approach. I now routinely attempt dialogue with the agency requesting the summons, but in one case I was rudely stonewalled when I asked about the purpose of the summons and questioned its scope. I had reason to suspect an ulterior motive by the requesting party. Nevertheless, the Tribunal required the release of my file for their consideration rather than directing, as I had requested, that the requesting party respond to my queries about the basis and scope of the summons.

In another case my entire file was provided to the insurer, but in two other cases the Tribunal determined that my consultation notes be withheld from the insurer. It has not been possible to establish the Tribunal’s reasons, whether the notes were deemed irrelevant or protection of privacy and concerns about potential harm were factors.

In the recent matter before the WRCT, my entire file, including consultation notes, was provided to the solicitors for the insurer, but not to the insurer itself, presumably as a result of my objection. Interestingly, I only found out the Tribunal final decision in relation to my objection when I subsequently appeared as an expert witness in a hearing relating to the same patient and the insurer’s solicitor cross-examined me about my own consultation notes. The parties were informed that my objection to release of consultation notes was dismissed but, as the doctor making the objection, I am yet to be officially notified. The dismissal of my objection however came as no surprise given the Chief Commissioner’s comments when he heard my objection. I will await the formal decision with interest.

Hopefully as a result of the decision in Carver & Comcare, the reasons for future decisions about objections will be provided in writing.

In one of the five cases however,  I was gratified that the insurer actually withdrew the request for my file after I explained to the insurer’s solicitors the basis for my objection, referred to my own conclusions about the implications of the Carver and Comcare Decision and raised the potential need to seek my own legal advice. I am not sure why they withdrew, but I like to think insurers might now consider the necessity of medical file information before embarking on the rather oppressive and intrusive process of forcing a medical practice to release a file.

The Future

I hope that more respectful approaches will be adopted where insurers require medical information from treaters, i.e.  polite written requests accompanied by the patient’s consent or even a request for case conference. If a “forensic” examination of records is important, perhaps they could identify the issue, rather than the intrusive and scattergun approach of a file summons. The term “fishing expedition” comes to mind.

There remains a need for the medical profession to put forward its views on the professional duties of a doctor in relation to confidentiality of medical records and professional obligations in a response to a summons. The RANZCP statement Patient–psychiatrist confidentiality: the issue of subpoenas is a good starting point. The AMA also have some guidelines for their members – Guidelines for Doctors on Disclosing Medical Records to Third Parties

I have had feedback from patients who have experienced unwanted access to their file and felt the unnecessary intrusion. One such patient wrote to me:

“The patient in this process (making a compensation claim) has to waive rights to privacy; their personal medical information is routinely disclosed to their employer, rehab case managers and to other medical practitioners for IME consultations. The patient has no say in who is given what information. While it is important that employers properly manage an injured worker’s injuries and assign appropriate work accordingly, in my experience, disclosures can be to anyone in the organisation and not always for this purpose. Disclosures seem to increase if the patient questions the process. I have routinely annotated consent forms to restrict disclosures of my personal information to only information about my workplace injuries, and only to a limited group of people, but this has caused me problems.”

“These records are not just released to the tribunal, but subsequently to the insurer and their lawyers and may also appear in a publicly available decision document.”

“I am now very careful to divulge only the minimum information required to seek medical intervention as a result, but I rarely go to doctors anymore, despite medical need. I will not tell anyone which doctor I see now. So it’s not just practitioners who are deterred.”

Patients also seem to be disempowered. Again to quote from the same patient:

“There is an imbalance of power in a workers comp case and the patient is already broken and intimidated, while trying to manage an injury/illness, rehab process, legal case, distress, work and family.”

“For patients there is no real avenue or forum for any feedback to the system or for discussion in the public domain of what happens to us.”

From my recent experiences, I see a twofold need:

• Firstly, insurers and their legal advisers need to be made aware of the repercussions of a legal system that routinely forces doctors to release their files. Not only is there potential for psychological harm to the patient, but such practices undermine patient confidence in the medical system. This might lead to non-disclosure of important information for the doctor’s decision making. Repeated unwelcome legal intrusions might deter some doctors from being prepared to treat compensation patients. What has been labelled “Refusal to Treat” has already been identified by researchers as an issue affecting access to treatment for patients in compensation systems. There is not much published on this subject but some research is emerging. See link:  “Is clinician refusal to treat an emerging problem in injury compensation systems?”
• Secondly, if the Court system has ultimate control and responsibility for the legal processes that require doctors to release their file (as they do and there is no prospect that that can change), that responsibility should extend beyond just the legal considerations of relevance of the documents to the matter before the courts. The Courts have the power to reject or modify requests from insurers, but I have seen little evidence of the exercise of that power. There needs to be a proper process adopted by tribunals and courts that considers the legal need, along with an assessment of potential harm. Harm can occur both at an individual level and at the level of the overall public interest. The public interest is seriously undermined if patients no longer disclose important confidential information to their doctors or doctors are no longer prepared to treat compensation claimants.

Conclusion

I believe summoning an entire medical file should be a “last resort” where medical information from treaters is essential for justice and alternative means to obtain necessary information have been unsuccessful.

The Carver and Comcare Decision identified some deficiencies in the legislative provisions relating to summoning files. There is an opportunity for a more comprensive review of  Legislation, Practice and Procedure.

In the interim, it seems appropriate for medical professional organisations to publicise this issue amongst their members, explore issues of professional duty and provide education about what options doctors currently have when their medical files are summoned without patient consent.

Further Developments

I recently delivered a presentation – Medical Files – Access by insurers via court demand at an AMA sponsored forum that included consideration of this subject. In preparing my presentation, I contacted the AAT to clarify the procedures relating to the process leading up to the issue of a summons for a medical file.

As I understand it, the party wanting access to a medical file drafts the Summons and makes a request in writing to the Tribunal so that a registrar of the tribunal can consider:

• the reasons given for requesting the summons;
• the person to whom the summons is directed; and
• the description of the documents the person will be required to produce.

The only currently-accepted grounds for rejection of a request include that the information is not relevant to proceedings or if the summons is too broad or incomprehensible. The same principles apparently apply in the TWRCT.

The AAT were not however able to provide any answer to the following query:

“How many Summons requests for medical and other health professional files are issued annually by the AAT? How many are issued as requested, how many are modified and how many are refused completely? Can you summarise the reasons for refusal or modification?”

I understand that there are about 1000 applications each year to the AAT in workers compensation matters. I further understand summons requests are a subset of that group. In my experience summons’ are often issued to multiple health providers as part of a single application, so I expect 100’s (if not more) of medical files are obtained by this process and remain on insurer and lawyers computer servers for long periods. It would be interesting to obtain an accurate answer to my query, if that is possible.

My communication with the AAT did offer some hope. In answer to my query about any plans to review processes relating to summons procedures, I received the following answer:

“We are currently looking at practice and procedure in that area of our work as well as at our practices relating to summonses more generally. We would welcome the views of stakeholders in relation to these matters, including any concerns or suggestions relating to summons procedures. Should you or the AMA wish to provide any views, these can be forwarded to: legalandpolicy@aat.gov.au”

Where To From Here?

I hope that medical organisations will take an interest in this important issue and lobby appropriately. I also hope that the AAT (and other Courts and Tribunals) review their procedures and flag the need for legislative change where the current law presents a barrier to new procedures that take account of harm. Updated procedures should not only consider the relevance to legal proceedings of confidential medical files where an insurer considers that they contain potentially important evidence.

I also think a doctor’s consultation notes need to have special protected status given their primary role is to aid treatment, the inclusion of most sensitive material in those notes and the potential for misinterpretation by non-medical people.

I am interested in any feedback on this issue.

I don’t think much has really changed since I wrote an article about surveillance entitled Sharp Focus or Blunt Instrument on this site in 2014. This article discussed the potential for harm from video surveillance of personal injury and workers compensation claimants. There has been some publicity about the negative effects of surveillance on people with mental health claims, particularly in NSW, but nothing much happening in this space in Tasmania.

A recent ABC article I was a private investigator for insurance companies really brought the issue into focus again, with a credible source from within the industry reinforcing what some people already realise – that the practice is potentially very harmful, is often undertaken at the whim of a junior insurance company claims officer and is mostly a waste of time and resources.

I think there is a place for surveillance in very limited circumstances, but a decision to film an unsuspecting person and intrude of their privacy (and often those around them too) should only be undertaken for a very good reason. As I have previously stated, I think an independent responsible person, who can properly assess the risks and benefits should authorise any planned surveillance.

COVERT SURVEILLANCE SHOULD REQUIRE A COURT ORDER!

The Tasmanian Minister for Primary Industries, Building & Construction and Veteran’s Affairs, Guy Barnett recently announced in a Media Release about PTSD Reform

“that Tasmania will become the first jurisdiction in Australia to legislate a presumptive provision for workers compensation claims arising from diagnosed Post-Traumatic Stress Disorder.”

Mr Barnett has also expressed his support for Veterans in the following Media Release:

New Proposals to Assist Veterans

These announcements have been generally well-received, although I have heard some concerns expressed that opening up presumptive provisions across the entire State Service might encourage claims from undeserving workers and create additional unanticipated problems. We are yet to see the detail about how the legislative amendments will work. Hopefully there will be consultation with the consumers and practitioners who work within the system regarding implementation.

There are however issues about how our Front-line “First Responder” workers are being treated where they have been accepted by the compensation system. A recent Channel 9 News Article highlighted the issue of a Fire Service employee denied  important treatment recommended by his treating doctors despite having suffered a serious injury.

While I have no knowledge of the case highlighted above, I have observed in a number of recent cases the adverse effects of an adversarial claims management approach towards Police, Ambulance, Hospital and Fire Service employees who have sustained serious physical and psychological injuries in the course of their front-line work.

The most common scenario is that funding for important treatment is denied, usually based on the opinion of an “independent” doctor who spends a relatively brief time assessing the worker. Many of these independent doctors have not practiced in the relevant field of medicine for many years and are reliant for repeat business from insurers according to the value to the insurer of the opinions they express.

The insurer (in the case of the State Service – a Self-Insurer) chooses the opinion of that doctor in preference to the opinion of the treatment team who know the worker’s condition best through multiple contacts over a period of time. Lengthy destructive legal processes are necessary to re-instate treatment.

If barriers to claims for PTSD by front-line workers are lifted, it will become increasingly important that the systems to support and assist workers managed within the compensation system are reviewed to avoid an increasing number of front-line workers being adversely affected by the system meant to support them.

Recently two important National reports have been released relevant to Workers Compensation in Tasmania.

The ABS Report – Work-related Injuries Australia July 2017 to June 2018 provides  interesting reading about the number of injuries, but highlights the relatively low number of people who actually make claims and have their conditions managed through our workers compensation schemes. While there is no breakdown by state, nationally only 55% of workers who experienced a work-related injury applied for workers compensation.

The 2018 National Return to Work Survey provides increasingly useful data about some of the outcomes for injured workers in compensation systems around Australia, including comparison between the states. While the official Return to Work rates around Australia of just over 80% (Tasmania is on a par with other states at 79.3%) are relatively stable,  some new information in the current survey is interesting. While Tasmania fares reasonably well on a number of measures, the rates of reported persistent pain and psychological distress are somewhat higher than most other jurisdictions.

The report states:

“While there is no statistically significant differences between jurisdictions, it appears that a higher proportion of workers from Tasmania and Comcare have experienced persistent pain than those from other jurisdictions”

“A significantly higher proportion of workers from Victoria (15.6%) had a Kessler 6 score indicating probable serious mental illness. Workers from Queensland and Tasmania also had a relatively high incidence of workers with ‘probable serious mental illness’ (11.5% and 11.8% respectively), although these results were not significantly higher than other jurisdictions”

Some of the Workplace Domain measures for Tasmania were also of concern, perhaps reflecting the relatively greater proportion of smaller employers in Tasmania.

I hope to provide a more detailed analysis of these reports from a Tasmanian perspective soon but, irrespective of inter-jurisdictional comparisons, the rates of persistent pain and psychological distress are a cause for concern.

Measures to improve the mechanisms to support injured front-line workers are important. This should not only include improved access to compensation system support, but also ensure that compensation schemes do actually support injured workers as intended.