Split down the middle! – AAT decisions about upper limb pain and its relationship to computer employment

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.

 

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Justice AND Harm Minimisation – is that possible? – medical file access by summons or subpoena

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.

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Surveillance Yet Again!

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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!

 

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What’s happening at the Frontline?

Screenshot 2018-11-08 08.06.32

 

 

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.”

He confirmed the government’s commitment in the following terms:

“….. Hodgman Liberal Government is committed to seeing first responders provided with a fair and reasonable access to workers compensation for work-related PTSD.”

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.

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Time to Revisit “RSI”!

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I would like diverge from the usual theme of this blog by considering a specific occupational health issue – that of what is still often described as “RSI”. Unfortunately that label is both inaccurate and invokes an emotive response, so I try to avoid its use as much as possible, but the term is difficult to avoid because of its entrenched status, popular usage and lack of a suitable alternative term.

I have taken an interest in this subject from the time of the so-called “RSI Epidemic” of the 1980’s. At that time I was the Senior Medical Officer at the Hydro-Electric Commission (now Hydro Tasmania) and that organisation had their share of these problems, although not to the same extent that Telecom (now Telstra) did at the time – as has been described in the literature by Occupational Physician, Dr Bruce Hocking.

In my various roles since that time, I regularly encounter the phenomenon of upper limb disorders in computer operators, that, on the face of it, is caused by the sufferer’s work using computers. Particular problems seem to relate to mouse usage, perhaps more so than with keyboard use, although the underlying common factor appears to be the posture adopted at a computer that restrains normal upper limb movement for sustained periods. Similar problems are encountered with musicians and sonographers. Aggravation in association with driving posture is also widely reported.

While some sufferers have associated psychological disorders, my overwhelming impression is that the majority of sufferers are “normal”, often hard-working and dedicated people who suffer a convincing syndrome of pain and associated neurological symptoms that is temporally related to their use of computers at work. Chronic pain causing long-term disability from these disorders is common.

While there is a relative dearth of objective clinical findings, the presentation is sufficiently convincing in terms of consistency and response to aggravating and relieving factors for me to accept that this probably represents an “organic” condition and is not a primary psychological disorder, fibromyalgia syndrome, hysteria or a socially-caused phenomenon as has been suggested by some commentators.

it is difficult to get accurate official figures on the incidence of these disorders in Australia in recent years. The 2016 statistics for musculoskeletal disorders from SafeWork Australia include the following table:

Screenshot 2018-10-18 08.31.29

This table would suggest that in the period covered there might have been 4,000 or more cases of upper limb overuse syndrome, comprising 1.3%  of claims. If bursitis, tendonitis, epicondylitis and non-traumatic muscle or tendon strain are included the total is potentially much higher i.e. 30,000 or more claims.

What I have observed in recent times, is that Comcare, in particular, have challenged continuing compensation for many sufferers of these disorders. It is difficult to know how many claimants accept Comcare’s determination of entitlements and don’t make a legal challenge, but I am aware from reviewing decisions in the AAT and from contact with doctors and solicitors in Canberra and Hobart that the decisions made by the AAT can vary widely with both acceptance and rejection of upper limb disorders claimed as being related to use of computers. One of the important determinants of the outcome is whether there is a specific diagnosis.

AAT Senior Member DJ Morris in Neville and Comcare (Compensation) [2018] AATA 3738 (5 October 2018) found no reason to even consider evidence about work causation on the basis there was no acceptable medical diagnosis. He states:

“An essential first element in assessing a claim for workers’ compensation is that a person has a medically diagnosed ailment as defined in section 4 of the Act and whether a person has an “injury” in terms of section 5B(1)(a). It is accepted that Mr Neville may have discomfort in his right forearm, but that is not enough. Mr Neville relies on Dr Cooke’s use of the term “overuse/RSI ” as a settled diagnosis, but in his evidence, Dr Cooke himself submitted it was not strictly a diagnosis. “

In contrast, AAT Member S Taglieri in LHHL and Comcare (Compensation) [2018] AATA 3272 (7 September 2018) rejected Comcare’s determination to deny liability in relation to a specific condition (Complex Regional pain Syndrome) related to computer employment. She states:

“The Tribunal is satisfied that the reviewable decision was erroneous in that it concluded that the applicant no longer suffered from the effects of a compensable condition. The Tribunal is of the view that the applicant continued to suffer from the effects of the compensable condition secondary complex regional pain syndrome. For these reasons the decision under review is set aside and the matter is remitted to the respondent to give effect to the determination of the Tribunal.”

Not a lot seems to have changed since the time of the case Maree Verna Tyrrell and Westpac Banking Corporation [No 2924 of 1990] (14 December 1992) when Judge Barlow concluded:

“However, the plaintiff has failed to persuade me the nature and conditions of her employment constituted a hazard and risk to her health, that is to say a risk of injury, and in particular a risk of sustaining a condition or injury referred to as RSI” .

 “I am inclined to the view their lack of objectivity has led them, subconsciously at least, to develop a hypothesis to fit their theory that pain syndromes, of the type which the plaintiff claims to suffer, have a neurogenic cause. In reaching this conclusion I have not overlooked Professor Mastaglia’s comments, that the contents of Professor Helme’s paper [1]could be the beginning of objective evidence of an organic basis for this type of pain syndrome” .

 “My findings do not exclude the possibility of there being a neurogenic factor, to pain syndromes of the type which the plaintiff claims to suffer. Research yet to be done and testing techniques and equipment yet to be devised may reveal the presence of a neurogenic factor or cause”.

It would seem that the Tasmanian Workers Compensation Tribunal is having difficulty with decisions on this subject. No decision has been made about a case of upper limb pain related to computer employment where the hearing was conducted in February this year (or maybe the Tribunal is just under resourced).

What was previously called “RSI” is currently often described as “non-specific” arm pain. Lack of agreed diagnostic criteria means it is difficult, if not impossible, to accurately explore relationships to workplace factors. On that basis proof to a high degree of scientific certainty about occupational causation for “RSI” has remained elusive. If it were established that there is a specific diagnosable disorder, causative factors can be scientifically examined.

When I listen to the evidence delivered by practitioners who deny the possibility that computer work can cause such disorders, there seems to be a heavy reliance on the evidence and opinions from the time of the “RSI Epidemic” rather than referring to up-to-date evidence about the mechanisms of chronic pain or occupational epidemiological studies.

Recently I have spent more than 50 hours preparing a literature review related to the above subject. In particular, I looked at literature relevant to the question whether brachial plexus neuropathy (BPN) might constitute a specific diagnosable condition and provide an explanation for many cases of upper limb pain related to computer employment.

Dr Jorgen Jepsen in Denmark has done some work that seems to suggest that BPN might be a specific disorder that can be diagnosed reliably by a careful detailed clinical neurological examination, building on the earlier hypothesis of the West Australian Rheumatologist, Dr John Quintner of a neurological basis of “RSI”.

The work of Dr Jepsen needs to be replicated by other researchers, but his work does provide evidence of a disorder plausibly related to the postural demands of computer work, worthy of further research.

I suspect there is reluctance on the part of many organisations to further explore this subject because of the very significant implications for employers and compensation providers should incontrovertible evidence emerge of a causative relationship between the common upper limb pain  syndromes and computer employment.

In a 2014 article in The Conversation, entitled Repetitive strain injury: is it real or imagined? the author suggested the science was settled while recognising continuing negative connotations from the disorder, as follows:

“While the term RSI, which implies an injury which has been caused by physical factors, has long-since been replaced by the term occupational overuse syndrome (OOS), its use, and the negative connotations associated with it, persist.

Fortunately, diagnostic criteria have now improved. Workplace injuries and conditions which would previously have been classified as RSI are now more accurately diagnosed. This, along with greater acceptance of the role of psychosocial factors has led to improvements in the management – and the outcomes – of these injuries.

All we need now is to improve our recognition of the importance of these factors in the prevention of injuries – but that’s another story.”

I would not accept the conclusions about accurate diagnosis and improved outcomes, at least from my perspective of a practicing physician who regularly sees these cases, the wide variety of diagnostic labels that are applied, the confusion about entitlement to compensation and sometimes poor outcomes.

These questions are important to settle, not only from the perspective of responsibility for rehabilitation and compensation where cause-based compensation systems exist, but also from the perspective of evidence-based prevention, in a world where there is growing use of computers and related devices in schools, homes and workplaces.

While employers almost universally accept the value of preventative measures to prevent “discomfort” amongst computer operators, elucidation from a scientific perspective of specific medical conditions caused by use of computers and the circumstances in which that can occur can only be of value in prevention of disability,  contribute to a productive workforce and ultimately save costs to the community.

Occupational Physicians have an important role to play in this area and should take the lead in researching and putting forward the evidence, without fear or favour, to allow informed decisions to be made, both at a system and individual case level. These disorders are clearly the province of occupational medicine, rather than other medical specialities.

I THINK THE TIME IS RIGHT TO REVISIT RSI!

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The Pilot Shortage – a looming crisis in compensation systems?

Shipwreck

NO, I DON’T MEAN AIRLINE PILOTS!

Read on ……..

A patient told me recently that their surgeon had advised that necessary care could not be provided within the workers compensation system. The only option, as far as the surgeon was concerned, was that the recommended surgery be undertaken with funding from private health insurance. Given the necessity for the surgery, the patient felt there was no choice but to proceed on that basis, which they did. No doubt their future management will be complicated, especially if it is confirmed that they do indeed have a work-related condition and rightfully belong within the workers compensation system.

This anecdote is but a pixel within the big picture of doctors becoming increasingly reluctant to manage patients within compensation systems.

A SHIPPING PILOT?

Let’s briefly digress to consider an analogy relevant to patient management within compensation systems. The concept of a “pilot” is a useful one. I picture a ship’s pilot guiding a vessel through treacherous waters with the primary objective of the safety and well-being of the ship. A pilot has specialised knowledge to guide the ship in risky situations.

Using this analogy, the injured worker remains as the captain of the ship, but a pilot is needed to negotiate a passage through a dangerous reef or to navigate a difficult harbour to find a safe berth.The prime objective of the pilot is the safety of the ship.

Taking the analogy further, the pilot’s objective is not the financial well-being of the system that insures against shipping losses, even though an effective pilot will contribute to the financial well-being of those systems. The health interests of an injured worker and the interests of a compensation system are not completely aligned!

PILOTS FOR INJURED WORKERS

Who can most effectively pilot an injured worker within a compensation system?

I would suggest the following attributes are important.

  • A trusted continuing relationship with the injured worker
  • Awareness of hazards, safe pathways and relevant resources
  • Knowledge of the individual’s psychosocial risks
  • Experience in team roles with the ability to communicate with other key participants
  • Respect for the role by all system participants

In my view, the person with the best overall credentials to take on that role is the worker’s medical practitioner. The most fundamental criterion is a durable trusting relationship between the injured worker and the “pilot”. A worker can usually be assured that the doctor’s interests are aligned to their health and recovery interests with minimal conflict of interest, reinforced by the doctor’s legal duty of care to their patients. This “duty of care” is absent for other participants, except to the extent that an employer has a legal duty of care regarding the worker’s employment. With the right to select their own doctor, an injured worker can change to the care of another, if that trust is undermined for any reason.

Doctors can fall down in their ability to take on that role however for a number of reasons:

  • Lack of motivation or incentive to take on the role
  • Limited experience of compensation systems, leading to limits on their knowledge of risks, hazards and safe pathways, particularly in relation to workplaces
  • Limitations on communication with other key participants due to time and knowledge restraints

Where a patient’s usual GP cannot take on the piloting role, there should be options for a referral to another medical practitioner with a greater capacity for the role, while retaining the benefits of a trusting relationship through the patient’s input regarding the referral. This can be to another GP or a specialist, such as an occupational physician, with relevant expertise.

There are alternatives for the “pilot” role. While in an environment where an employer has a positive relationship with its employees, an employer might be able to take on a piloting role, the sad truth is that many workplaces remain adversarial and employer/employee trust is often the first casualty after a claim for compensation. The advantage that an employer has is knowledge of the workplace issues and the worker’s workplace history, but in some cases a compensation claim is just another step in the deterioration of the already suboptimal employer/employee relationship.

While a positive role by the pre-injury employer is essential to a return to work outcome with the original employer, it is the complex cases that require a trusting relationship that continues beyond the loss of the original employee/employer relationship. A worker’s doctor has scope for a continuing relationship irrespective of the situation following injury, along with some knowledge of the worker’s medical and psychological history relevant to understanding the response to injury and incapacity.

Another contender for the “pilot” role is the rehabilitation professional. Again, while in many circumstances, an independent and professional practitioner can develop a trusting relationship with the injured worker, there are potential conflicts of loyalty given the mechanism for appointment and funding of rehabilitation professionals. These conflicts have potential to undermine that relationship. The continuation of the relationship is contingent on funding from a third-party i.e. the insurer or the employer itself. If the third party funder interprets a trusting relationship as ‘hand holding’ or advocacy on behalf of the worker, there is the option to terminate the relationship by withdrawal of funding.

While union representatives and lawyers can sometime provide guidance on specific legal or employment issues, I do not see there is scope for these people to take on a routine “pilot” role. Indeed, involvement of unions and lawyers is seen by other parties as evidence of a breakdown in the usual workplace and health care relationships and the start of a process that will inevitably lead to a poor outcome.

Occupational Physicians (OP’s) are arguably the most important medical specialty in the piloting field, given their expertise in work-related health issues and rehabilitation. In my view OP’s should also play a leading role as mentors and guides to other medical practitioners managing patients in compensation systems with a role in direct management of more complex or potentially poor-prognosis cases.

Other important specialties include rehabilitation physicians, pain physicians, psychiatrists, rheumatologists, musculoskeletal / sports physicians and various surgical specialists, particularly orthopaedic surgeons and neurosurgeons, but probably not in a  “pilot” role.

A looming crisis?

My concern is that there are barriers to the development of effective piloting provided by doctors because of a diminishing pool of doctors willing and suitably equipped to take on such roles.

Discussions I have with GP’s suggests many of them don’t want to take on compensation cases (particularly complex ones) any more. It has become all too hard with a complex poorly understood system, need to constantly seek approvals for treatment, disempowerment caused by the role of the insurer and their medico-legal advisors and relatively poor remuneration considering the complexity and input of time necessary.

Despite WorkCover Tasmania’s recent trial of a support and mentoring system for GP’s, known as MAMS, the scheme was abandoned leaving GP’s and specialists without any additional resources to help them manage compensation cases.

The inceasing reluctance of doctors to become involved in compensation systems is also reflected in research undertaken in Victoria. I suspect if such research was undertaken locally, there would be the same findings. See link below.

Is clinician refusal to treat an emerging problem in injury compensation systems?

Perhaps of even greater concern (certainly to me as an occupational physician) is a developing crisis in the local Tasmanian OP workforce with the impending retirement of 80% of the current workforce that has been in practice since the 1980’s.

The 2016 Australian Government Factsheet on the OP workforce provides some sobering statistics. The OP workforce nationally is ageing with well over 50% of practitioners over the age of 60 (myself included)!

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Tasmania already has amongst the lowest numbers of OP clinicians per 100,000 population (close behind Queensland) as illustrated by the following charts.

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The situation with an OP shortage is compounded by differential remuneration that preferentially rewards OP’s (and other specialist doctors too) to undertake independent medical assessment (IME) work over actual patient treatment and management i.e. involvement in “pilot” roles.

Other medical specialists are also increasingly reluctant to get involved in compensation cases as illustrated by my opening anecdote. With the recent retirement of Hobart’s only rheumatologist willing to take on compensation cases, there are no longer any rheumatologists that seem interested to work in this field. Tasmania’s only rehabilitation physician in private practice advertises on the Tasmanian Health Directory Site: “no workers compensation cases”. Most surgeons I deal with seem reluctant to take on compensation cases.

CONCLUSIONS

I believe we confront:

a deficiency of medical practitioners who could become “pilots” for injured workers

and, it seems

the situation is deteriorating, rather than improving, with time

I draw the above conclusion from observing interactions in my local compensation schemes  i.e. Tasmania’s Workers Compensation Scheme (WorkCover Tasmania) and Motor Accident Scheme (MAIB) and Comcare, but what I do see from interstate jurisdictions suggests that this is a national phenomenon. Formal research confirms this trend.

This phenomenon is also suggested by SafeWork Australia’s initiative to sponsor a committee considering measures to improve GP engagement. Their Annual Report refers to initiatives in this area (page 65):

SafeWork Australia Annual Report 2016/17

The legal and insurance systems are also recognising lack of GP’s engagement and expressing frustration with slowness in provision of medical information to resolve legal issues.

Human Resource Practitioners have identified 6 “mega trends”:

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These trends will further challenge our existing compensation systems. See my earlier article Degenerative Disease – Too Heavy a Burden on our Compensation Systems. Already it has been estimated that half the work-related injuries that currently occur are managed outside of the workers compensation systems “designed” for that purpose.

WHERE TO FROM HERE?

There needs to be a fundamental rethink of approaches to successfully engage medical practitioners, both GP’s and specialists, in our compensation systems.

Doctors need to be encouraged by a variety of means to develop the skills and relevant career paths, so that there enough “pilots” for our injured workers. This involves both identifying the barriers to engagement and providing incentives and training for those doctors prepared to become involved in this important aspect of medicine – reducing disability following work injury.

What is needed is a co-operative effort between various medical organisations, government, regulators and consumer groups to explore these issues and develop strategies to promote GP and specialist involvement in compensation case management.

Equally important are strategies to promote the specialty of occupational and environmental medicine in Tasmania so that we have enough OP’s to serve our future needs. There is a clear need from a local training programme for OP’s, before the specialty in Tasmania disappears entirely.

 

 

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How does Tasmania COMPARE?

Yesterday I attended the RTW Forum presented by the Insurance Work  and Health Group (IWHG) headed by Professor Alex Collie at Monash University in Melbourne. Although it might seem like a dry subject, I found it very relevant and interesting and a great bunch of people too! There was a lot of constructive interaction in the discussion sessions.

There was quite a lot of interest for Tasmania with two of the research projects specifically looking at Tasmanian legislation and practices. I think I was the only attendee from Tasmania, unless you count ‘defectors’ who have moved from Tasmania to live and work on the northern island! Notable attendees included Alan Clayton, Safety@Work Blogger Kevin Jones and Stephen Campbell from Campbell Research & Consulting.

I have previously presented evidence about the situation in Tasmania at the TAVRP meeting last year, as summarised in my article The State of Play in Tasmania. The IWHG forum added some more detail about inter-jurisdictional comparisons and some further insights into Tasmania’s system, most specifically the outcome from the introduction of the Return to Work and Injury Management Model (RTWIMM) following the 2007 Clayton Review of Tasmania’s worker’s compensation scheme as well as some interesting data about the effects of penalties for late reporting by employers.

The forum was presented by Alex Collie, Tyler Lane, Luke Sheehan & Shannon Gray using evidence from the COMPARE Project with the indomitable Mark Stipic as Master of Ceremonies.

Professor Collie opened the forum with discussion about the burden of disease affecting the Australian workforce. Amongst a workforce of about 11 million there are reports of half a million work-related injuries each year, but only half that number of actual workers compensation claims.

In working age groups, musculoskeletal disorders and mental health disorders are by far the most important conditions. Mental health disorders predominate in younger working age people and musculoskeletal conditions dominate in older workers. The slide below illustrates this very nicely.

Tyler Lane presented a study on the Impact of Legislative Change. He discussed his enthusiasm for “natural” experimentation opportunities created by the relatively frequent legislative changes and presented data and his analysis using the “interrupted times series” methodology. One problem identified though is that legislative changes often include a number of changes introduced at the same time making it difficult to sort out cause and effect. Perhaps legislators should stagger the introduction of changes to make a researchers job easier?

He presented two studies, both relating to Tasmania. The first about the impact of penalties on employers for late reporting of injuries in Tasmania and South Australia and the second about the introduction of the Return to Work and Injury Management Model (RTWIMM) in Tasmania.

Unlike in SA, the introduction of employer penalties for late notification in Tasmania didn’t coincide with introduction of provisional liability provisions which might have encouraged employees to notify injuries more quickly. The evidence suggested that any shortening of times to report injuries by employers may be counteracted by insurers taking longer to make liability decisions. It is a complex picture, but the evidence doesn’t detract from the principle of the value of early reporting.

The study relating to the RTWIMM considered whether it achieved the stated goal of improving RTW outcomes. The data suggested it did not, but introduction coincided with changes to ‘step down’ provisions making them less severe in terms of both timing and extent, again making interpretation difficult. Here are the relevant slides:

 

In the discussion, it was also evident that, while their might be legislative intention to change practice,  this might not actually occur in practice. Alan Clayton suggested that in Tasmania for example much practice is not in accord with legislation. Further it was suggested by an audience member that, anecdotally, in the Tasmanian jurisdiction the penalties were rarely actually applied in relation to late reporting of injuries by employers, because of market forces!

My comment about the introduction of the RTWIMM was that the new role of Injury management Co-ordinator (IMC) increased complexity and administrative burden for the insurers and other stakeholders causing confusion. There was (and still is) confusion between the role of IMC and Workplace Rehabilitation Provider. An additional factor is that IMC’s who usually are employed by insurers cannot act independently in accordance with legislated intention because they report within an insurer’s hierarchical reporting system ultimately controlled by claims managers.

Differences in claim patterns for mental health disorders were evident around Australia with Tasmania having the highest incidence of such claims – 1.2 claims per 1000 workers (higher even than Comcare) but the best rate in Australia in terms of median time off work (compensated time off) at 10.8 weeks, compared to 31.8 weeks for the highest, Comcare.

It is important to recognise though that the data for time off refers to time where compensation was paid, not necessarily actual time lost. How closely median time off reflects actual time lost probably varies considerably between jurisdictions because of different policies and practices relating to acceptance of liability for mental health disorders and restrictions of entitlements for extended incapacity. See slide below:

There was also data confirming the high level of risk in First Responder organisations with different patterns between Police, Firefighters and Ambulance Officers. Nothing really surprising here.

While the research presented by IWHG is based on data from the National Workers Compensation Data Set and the RTW survey as well as the natural experiments that occur with legislative change, in the discussion the researchers expressed interest in accessing data from other sources, such as life insurers or data that relates to an individual worker’s particular history. Forum participants also highlighted issues with delay in access to data and limited availability of data to other interested organisations. The studies being presented relate to historical data sometimes many years old. It is increasingly recognised that there is a need for “real-time” data to provide more immediate feedback about effects of scheme changes.

Alex Collie expressed the view that there will always be some ‘art’ in combination with ‘science’ to the management of work-related injury, but his hope was that the science component could be increased. I suggested however a third element, that of “political ideology” – that also had significant influences on some WC management approaches.

In answer to a question about the overall direction of workplace health in Australia, Alex Collie suggested that prevention of physical injuries has improved significantly, but that the incidence of mental health disorders was increasing with the overall burden of work disability (taking into account both claims incidence and duration rates) probably still increasing nationally. It is also evident that there is very little data about the extent of secondary mental health disorders, as most data provides only diagnostic information about the primary injury. Secondary disorders are, in my experience, almost universal in complex and protracted claims.

Congratulations to the IWHG for another informative forum.

 

 

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