Debate about Workers Compensation – Moves to Mid-Winter Hobart!

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At the time of the winter solstice Hobart is an exciting place thanks to David Walsh’s MONA with the DARK MOFO and Winter Feast Events. There are challenging events like the nude swim in the River Derwent and entertainment and art events that attract people from all over the globe.

This year there will also be a stimulating series of events relating to the normally dry subject of Compensation Systems and Rehabilitation / Return to Work.

The local professional association of rehabilitation providers, the Tasmanian Association of Vocational Rehabilitation Providers (TAVRP) has organised a Symposium – “The Dark Side of Rehab” with a quality line-up of speakers:

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Here is the Programme

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VISIT THE TAVRP WEBSITE OR HOBART TICKETS TO REGISTER

In association with that event, there will be a number of other events including a Pre Symposium Seminar organised by Hobart Occupational Medicine with Professor Alex Collie presenting a summary of research about compensation health and Post- symposium workshops including a session from the WorkCover Guy, Mark Stipic about overcoming ambivalence  by employers to RTW.

There will also be Injured Worker’s Forum about the need for additional support and representation for injured workers run by Rosemary McKenzie Ferguson from the SA-based Work Injured Resource Connection. Here is the Programme.

HOBART IS THE PLACE TO BE MID-WINTER, WHETHER YOU ARE A LOVER OF QUIRKY ART EVENTS, PRACTITIONER OF THE DARK ARTS OR DEDICATED HEALTH OR INSURANCE PROFESSIONAL INTERESTED IN PARTICIPATING IN THE DEBATE ABOUT COMPENSATION SYSTEMS AND HEALTH. HAVE A LOOK AROUND OUR GREAT STATE – IN ITS WINTER GLORY!

More information about these events will be posted soon.

I look forward to meeting you in Hobart.

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Choosing Wisely – Request for comments

I have become aware that the option of making comments on this article is no longer available.

Choosing Wisely was published recently and I was expecting some feedback from small business on this matter.

You can now comment below.

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Choosing Wisely – Workers Compensation Insurance for Small Business

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Let’s forget momentarily about the effect of compensation systems on health outcomes. Rather, lets consider the position of a small employer taking out workers compensation insurance in Tasmania i.e. a small business perspective. There is a requirement for such insurance, but how does the business make a choice between the various licensed insurers?

Usually small business use a broking firm or agent to advise them about insurance matters, but how much can your broker tell you?

Some employers, I hope most, would want an insurer that helps them look after their injured workers, not just the cheapest possible premium to meet their obligation to comply with the law.

MY PERSONAL “LEAGUE TABLES”

As a doctor working in the field, I am aware of the different approaches by the various insurers but, apart from insurance premium information, there is no other readily available information to help a small business choose their insurer, unless they have experience with claims to judge for themselves.

I have my own “League Table” of the various insurers based on my experience in dealing with those insurers as a doctor looking after injured workers. Interestingly my own table is quite similar to the ratings of other doctors who work in similar roles and the workplace rehabilitation providers who are prepared to share their own personal views on this subject.

I also have experience from discussions with insurers about communication protocols between my practice and those insurers. There is a wide divergence between insurers about how they are prepared to communicate with doctors. To me, this reflects on the willingness of the insurer to engage and participate in a team process to assist recovery and return to work. Some insurers behave in a way which suggests that believe they should have ultimate control over all aspects of management of the case, including which practitioners provide treatment, the scope of practitioner treatment and management of the worker’s rehabilitation. While the insurers in Tasmania can ultimately be financially responsible for associated costs, I believe there needs to be cooperation and respect for the role of others in the process, whose responsibility is to the welfare of their patients.

In my own practice we have introduced Adverse Event Reporting. Over the last 12 months we have flagged about one adverse event each month. Of the 11 events, 6 occurred with the State Service Scheme, 2 with Allianz Insurance and a single event for Comcare, GIO Insurance and a self-insurer. Most interestingly, the category of event that predominated were issues relating to management of the claim (5 occurrences) compared to 4 occurrences relating primarily to the workplace and the remaining 2 occurrences relating to rehabilitation issues and medical complications. The consequences of the events ranged from minor setbacks to the workers mental health through to significant periods of incapacity for work and even extended psychiatric hospital admission. Luckily there were no suicides in this small group. While the numbers are small and the sample from this practice is probably significantly biased, it does provide a glimpse into the operation of workers compensation systems in Tasmania.

If such reporting was adopted more widely, useful information would be available to all scheme participants.

WIRO PUBLISHING COMPLAINTS

In New South Wales, the Workers Compensation Independent Review Office (WIRO), now publishes a range of information in their regular WIRO Solutions Brief, including a breakdown of complaints by Insurer. The table below from December 2016 illustrates the type of information publicly available in New South Wales.

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NSW WC Data Dec 2016 – Source WIRO Solutions Bulletin February 2017

LIFE INSURANCE COMPANIES PUBLISHING DISPUTE & REJECTION RATES

In the wake of public concerns about the Life Insurance industry, the Australian Securities and Investment Commission (ASIC) prepared a report in late 2016, Life insurance claims: An industry review that detailed declined claim rates and claim outcome rates for a range of insurance products.

The most marked variation in rates between insurers occurred with Total and Permanent Disability (TPD) claims as illustrated by the table below.

screen-shot-2017-02-12-at-8-03-18-pmCOMPETITION PRINCIPLES

An important market principle is that consumers, in this case employers, can make an informed choice about how they support their workers who are injured in the course of their work. It should not simply be a choice based on price, but take into account the employer’s approach to human resource management.

At present only limited information is publicly available about the approaches taken by various insurers to managing claims from injured workers. The cheapest premium might save money up front, but consideration also needs to be to the less obvious and long term costs associated with an aggressive approach by their insurer in disputing claims or complicating access to medical and rehabilitation management.

CONCLUSIONS

WorkCover Tasmania publishes data about scheme performance. In the Scheme Review to 30 June 2016, there is separate analysis of data for the Tasmanian State Service, Self-Insurers and Private Licensed Insurers, but it would help employers, especially small employers without the experience of previous claims, to make an informed choice if scheme performance data was broken down further, separating out the private insurers. The insurers provide the data, so I wouldn’t expect that to be too difficult. It is already occurring in other jurisdictions.

Introduction of new measures of actual health outcomes and adverse events could also be considered, again broken down by insurer.

Perhaps Worker Assist could provide some data as well?

The measures would help small business CHOOSE WISELY in relation to important aspects of human resource management, the health and wellbeing of their employees injured at work.

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Tendentious – What Does that Mean?

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@Bafflegab1 on Twitter describes himself:

‘Long-time critic of Ontario auto insurers; their defence lawyers; and their hired gun medico-legal assessors. Also critical of plaintiff bar lethargy.’

In a recent tweet, he referred to a judgement in the Canadian Superior Court of Justice from 2004 that I had not previously seen.

The judgement is of interest in that it considers the issue of an IME organisation that sought damages from The Canadian Broadcasting Corporation (CBC) in relation to a programme “Prove it if You Can” broadcast by CBC that had been derogatory about the conduct of the IME organisation – AssessMed.

Justice Paul Rivard ruled that the assertions made in the programme were objectively fair and there was no spite, ill will, any direct or ulterior motive on the part of the CBC by broadcasting the programme.  He states:

“I have already indicated that the comments in the program were based on true facts. The defendants honestly believed in the truth of the comments. The comments were based on facts upon which a person could honestly hold the opinions expressed. In such circumstances, I conclude the comments were objectively fair”

The judge calculated damages that might apply if his judgement was later found to be in error, however this ruling was that no damages were payable on the basis that CBC had made fair comment.

This brings me to the word ‘tendentious’, a word I had no knowledge of before reading this  judgement.

According to the Cambridge Dictionary this means:

“(of speech or writing) expressing or supporting a particular opinion that many other people disagree with”

Justice Rivard used the term tendentious in the context of describing the approach of Dr Richman, the director and Chief Medical Officer of AssessMed. Dr Richman had prepared an article “Manufacturing Disability” which to Justice Rivard revealed a clear and strong view held by Dr Richman that the majority of claimants studied at AssessMed wilfully misrepresented their situation, and that they did so often with assistance of their health care providers. His judgement includes the following:

‘While Dr. Richman’s opinions find some support in medical literature, they are considered too skeptical by others. Dr. Richman’s research in this area was based on discussions with assessors at AssessMed but not on any empirical or validated study. In my view, it reflected a tendentious approach to assessments, which subjected AssessMed to being viewed as partial to insurers.’

I have learnt a new word and am also aware of a judicial opinion rejecting a claim for damages by an IME assessment firm in Canada against Canada’s national broadcaster after it aired a programme that supported the notion that IME assessors can be biased in their dealings with motor vehicle accident claimants..

Are there any parallels in Australia?

Here is a link to the judgement for those interested:

https://www.canlii.org/en/on/onsc/doc/2004/2004canlii28479/2004canlii28479.html?

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Injured Worker Support and Representation in Tasmania – Do we need more?

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In the early days of this site I wrote an article about Injured Worker Support Websites where I asked for comments about the best approach to provide such support. There was a lot of negativity about the WorkCover Victim website at that time. Here is an excerpt from what I considered to be a balanced comment about my article:

“I don’t think websites run by injured workers who are entrenched in their own sick roles or victim roles themselves, will ever be healthy or empowering to other injured workers; its like leaving the lunatics to run the asylum and wondering why no one is getting any better. However, these seem to be the very people who tend to set up these websites and Facebook groups.

Without an appropriately skilled person facilitating or moderating these support websites and focusing its members on positive mind-sets and positive skill building, they devolve into an orgy of victimhood, toxic behaviours and one big pity-party.”

The best known active professional support sites include the New South Wales based Injured Workers Support Network co-ordinated by Rowan Kernebone and in South Australia, Rosemary McKenzie-Ferguson runs the Work Injured Resource Connection which provides, as well as information, more practical help through their ‘Bags of Love’ programme and has set up a Deceased Workers Memorial Forest in commemoration of lives lost due to the work place .

More recently the Injured Workers Group of Victoria has set up a site operated by injured workers (I understand with Rowan’s assistance).

In Tasmania, there is a service for injured workers, Worker Assist, with a focus on providing legal advice to injured workers and assistance with navigating the system, but no independent injured worker support site similar to those in NSW or South Australia. I understand, despite efforts to raise awareness about Worker Assist, that this service remains relatively underutilised.

Worker Assist’s website lists the following services:

“Worker Assist provides assistance, information and advice to injured Tasmanian workers in the following areas:

  • Workers Compensation Claims under the Tasmanian scheme
  • Return to Work and Rehabilitation following a workplace injury
  • Claims under the Asbestos Related Diseases Compensation Fund”

Worker Assist is primarily Government Funded and supported by Unions Tasmania, although I understand ongoing funding for the service is not secure in the long-term.

I recently had a call from a person enquiring about whether I knew anyone who could provide support to an injured worker about to attend an IME assessment with a doctor with a somewhat contentious reputation. The injured worker was not a patient of this practice, but I did my best to put them in touch with a person who I thought might be able to help and advised about the services available through Worker Assist.

I see a lot of injured workers struggling to come to grips with the confusion and loss of control inherent in workers compensation. Many need more than legal advice to help them take control and avoid becoming increasingly frustrated and downhearted.

Judging by the queries I receive from my own patients and now enquiries from other quarters, I believe there would be value in Tasmania dedicating additional resources to injured worker support. I wonder about the value of an Injured Worker Support Service to complement the valuable service provided by Worker Assist i.e. not only advice about legal matters and the operation of the system, but to provide more practical support and positive interaction with other workers who share a similar predicament.

Another issue I have encountered is who, or what organisation, can effectively represent injured workers at a system level? Traditionally the union movement has undertaken that role, but with decreasing rates of union membership throughout the workforce and  a primary union concern about industrial conditions over health issues, (with some exceptions for specific health risks, such as asbestos), perhaps there is a role for a dedicated organisation representing the interests of injured workers, separate from industrial organisations, at least to complement union representation.

For a service to meet the needs of injured workers, I believe it needs to be primarily run on behalf of injured workers by an ‘….appropriately skilled person facilitating or moderating…’ independent of any organisation with a vested interest using sound principles of support that enhances self-reliance and control to avoid becoming enmeshed in conspiracy theories about workers compensation and adoption of a victim mentality.

What type of model would work best in Tasmania? I am not sure, but I like the idea of a website with useful factual information and worker stories, in combination with more practical help, including providing direct support for injured workers by accompanying then to difficult interactions, education and information meetings, and providing a forum for positive interaction between injured workers.

A professionally run organisation could also act as a lobby group to ensure that the perspective of injured workers is factored in at a system level, through interactions with Government and WorkCover and other representative organisations, such as the TCCI, Unions Tasmania, Insurer Representative Groups and groups representing medical, legal and rehabilitation providers.

I expect Worker Assist and Unions Tasmania might be able to provide some insights into the unmet needs of injured workers from their interactions with injured workers.

It would be useful to obtain comments from Worker Assist, Unions Tasmania and interstate Injured Worker Support Site coordinators and any people in Tasmania who might have an interest in such matters.

I look forward to comments.

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THE GREAT DIVIDE – a sorry tale of lost teamwork!

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The Great Divide!

 

Firstly, let me say welcome to a few new followers to my blog following the release of Mark Stipic’s podcast of a second interview with me on RTW Nation about engagement with general practitioners.Thank you Mark.

Here is a link in case you missed it: http://rtwnation.com/34

Peter Sutczak introduced me to the ‘modern’ concept of vocational rehabilitation in the 1980’s. He used posters, similar to the one below, to get across the Teamwork Concept necessary to achieve the desired outcome – recovery and return to work.

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The concept was that everyone paddled together (up shit creek, if necessary) to achieve the goal that was best for the individual worker, their employer and society as a whole.

How that all seems to have changed (or perhaps was never achieved).

The two sides of the fence!

The Tasmanian Association of Vocational Rehabilitation Providers (TAVRP) has recently advertised its intention to run a symposium in June 2017 to coincide with Dark MOFO and Tasmania’s Mid-Winter Feast. The title is an ominous “The Dark Side of Rehab – A look at the more complex and controversial aspects of occupational rehabilitation”. I don’t know the details of the programme yet, but I expect it will  be interesting.

While TAVRP  is aligned with the peak national rehabilitation organisations ASORC and ARPA, there is another group, supported by WorkCover  Tasmania  called the Injury Management coordinators Association.

Tasmanian legislation makes provision for the role of Injury Management Co-ordinator and once a person has completed a short course they can be accredited in this role and work as independent provider coordinating rehabilitation without the more rigorous accreditation required by organisations to provide the schedule of rehabilitation services defined by legislation.

There appears to be a divide within the world of vocational rehabilitation

Perhaps the same division occurs amongst employers, those that will go the extra mile to support their employees with injury or illness and those who focus seems to be more on workers compensation as a cost of business to be contained. There is probably a third group of employers, those that haven’t even considered the issue!

I am aware of other dichotomies in the world of workers compensation. In the legal world there are plaintiff and defendant lawyers, and that applies very strongly to lawyers who operate in the world of workers compensation. Interestingly, I have heard plaintiff lawyers use the term moving to the “Dark Side” when referring to the world of defendant Law. Perhaps defendant lawyers use the same term for the world of plaintiff law. I am sure the legal profession can enlighten me on this point.

Plaintiff and Defendant Doctors?

Recently an occupational physician colleague asked me why I didn’t immediately object to being labelled a “plaintiff” doctor in discussion at a recent educational meeting about the role of surveillance (another murky issue) in occupational medicine . I answered that I didn’t agree with the label, but am now so used to the categorisation of doctors either on one side or other of the fence (and similar categorisation of every other “player’ in workers compensation) that I hardly notice such labelling any more.

John Quintner, in a recent comment on my recent blog article about an opinion piece from AFOEM President, Dr Peter Connaughton stated as follows in relation to the roles taken by occupational physicians, perhaps referring to the “Dark Side” of occupational medicine.

‘However, many became willing pawns in the adversarial arena, often being on the side of third-party insurers. ‘

It is clear that increasingly doctors who operate in the workers compensation space are being categorised as well, as either plaintiff or defendent doctors. How sad!

Adversarialism as a concept

As illustrated by the diagram below from Culture of Peace Activist, Peter Newton-Evans , adversarialism can become a vicious cycle:

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Adversarialism in Workers Compensation

It is becoming clear that over the years there has been a move towards adversarialism in workers compensation, almost certainly to the detriment of health outcomes for injured workers. There are now teams of people whose focus is either on the objective of cost reduction or on achieving health outcomes, but rarely both.

How do we overcome these artificial boundaries and achieve better outcomes all round? Each side of the fence needs to reach out and understand the other’s perspective and try to regain a shared focus on achieving the best outcome for the injured worker. If that goal can be achieved, I expect that costs can be contained.

LET’S GET BACK TO TEAMWORK – USING THE EVIDENCE BASE TO GUIDE US ABOUT WHAT WORKS!

 

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AFOEM President Peter Connaughton on improving workers compensation claims processes

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I commend AFOEM President, Dr Peter Connaughton on his opinion piece. It is time for professional bodies like AFOEM to add their weight to initiatives for change to our compensation systems that can unnecessarily contribute to poor health outcomes for those injured at work.

Here is a link to the statement:

Opinion Piece

Dr Connaughton refers to the recent Victorian Ombudsman’s Report that identifies significant problems related to the financial incentives paid to WorkSafe Agents.

Here is a link to my earlier commentary about the Victorian Ombudsman’s Report, its relevance nationally and particularly to my home state of Tasmania .

Through the Looking Glass – A Call for Greater Transparency

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