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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Great Expectations – The new ‘skills-based’ WorkCover Tasmania Board

Title Great Expectations (1946)

Media Release

On Friday 09 February 2018 WorkCover Board Chair, Kathrine Morgan-Wicks confirmed the make-up of the smaller, new skills-based board in accordance with the amended Worker’s Rehabilitation and Compensation Act.

See link to Media Release below:

Media Release – WorkCover Board appointments – February 2018

Legislative Council Amendments

The originally proposed legislation relating to the makeup of the WorkCover Board was amended in the Legislative Council in late 2017.

The Draft Second Reading Speech delivered by Minister Guy Barnett stated:

“Madam Speaker, the form and function of the WorkCover Tasmania Board will be refined and provisions which have proved particularly onerous or unnecessarily complex will be amended. The membership and voting structure of the Board will be redesigned to ensure all members are equipped with the necessary skills and experience to advise and make decisions.”

The bill fact sheet relating to the Government’s proposed legislation stated:

“Amend the membership and voting structure of the WorkCover Tasmania Board to ensure the Board is equipped with the necessary skills and experience to provide advice and make decisions on the broad range of matters within its scope.”

The Clause Notes to the original amendment legislation clarified some detail:

“After commencement of the Act, the Board will comprise of two Departmental staff (including the Secretary) and five persons appointed by the Minister.”

The draft legislation stated that the Minister was to appoint 5 members to the board without any detail about the skills necessary, apart from the assumed reference to the functions of the board.

There were concerns expressed about the amendment bill as it related to the makeup of the WorkCover Board. There were jointly-expressed concerns from TCCI and Unions Tasmania about loss of employer and union representation, but otherwise the change to a “skills-based” board and the extension of voting rights to all board members received broad support. Concerns were expressed however about the absence of detail in the legislation about the type of expertise required on the board and provisions related to board positions. There was no detail in the original amendments that passed the House of Assembly about the necessary expertise of the five persons to be appointed by the Minister.

The changes, if enacted, might have led to a future minister appointing a board with a narrow set of skills, to the detriment of an effective workers’ compensation scheme for Tasmania and reduced ability to meet challenges faced in the future. It was pointed out that a broad set of skills, particularly in relation to evidence-based management of work disability and data analysis, was necessary to meet those challenges.

While noting positive board initiatives such as the  Worker Assist service and the Better Work Tasmania initiative, I had expressed concerns including:

  1. There seemed to be an acceptance of rising disputation rates. (Initial disputes up from under 5% of claims in 2011/12 to nearly 8.5% in 2015/16). No measures had been introduced to improve usage of Medical Panels or other strategies to reduce disputation.
  2. There seemed to be an acceptance of escalating scheme legal and investigation costs (nearly $15M in the 2015-16 year and rising) i.e. significant costs to employers and the community.
  3. Only 45% of premium collected went to benefit injured workers. There was no data on this performance measure included in the 2015/16 Board Report.
  4. Concerns about the data relied upon by the board relating to Scheme Performance (Reliance on the RTW Survey and data provided by insurers)
  5. The Medical Mentoring Scheme (MAMS), set up to assist general medical practitioners to manage cases within the Compensation Scheme, had been abandoned.
  6. There has been delays in implementation of rehabilitation and medical involvement into Board processes via the Rehabilitation & Compensation Committee (although an initial meeting of the Medical Advisory Committee did occur later in 2017).

I was personally involved in presenting a submission to the Legislative Council, along with other representative health professional groups. See link below to discussion paper and briefing notes provided to the Legislative Council:

Discussion Paper for Legislative Council – July 2017

Combined Legislative Council Briefing – August 2017

Hansard (23 August 2017) provides some insight into the Legislative Council debate about this issue:

“RUTH FORREST 

I am going to refer to another amendment that has been circulated, but it is not on the Table as such at the moment.  I had some discussions with Dr Peter Sharman, which is probably reflected in his email to members.  This is a little along the model used in Western Australia where the representative body is not prescribed, as would be in the case of the member for Rumney’s amendment, but there is a person who has expertise in work-related injuries and who advocates for, or who has experience in respect of, the interests of injured workers.

Clearly, the most well-skilled and experienced people in that area are most likely to be union officials and people who work in the union environment.  They undertake those roles.  It is quite likely that someone involved with the union, either in a senior way or not, could be one of the most appropriate people.

Do you name up the union and TCCI as the main representative bodies?  You could argue that yes, you should, because they are the bodies that clearly represent their interests.  Not everyone is a member of TCCI and not everyone is a member of a union.  With medical practitioners you could say, ‘Why don’t we use a representative group there?’  Which one?  The college of GPs, the AMA?  Who?  It becomes difficult.  Lawyers – do we name up the Law Society, the Australian Lawyers Alliance?  Which body?

It is difficult.  If we are looking at a skills-based board, provided the skill set is identified – and this is where I think the Government was wrong in moving right away from identifying the skill set and giving all power to the minister.  With all due respect to the minister; it does not matter which minister it is -“

A later amendment put forward by Ms Forrest read as follows in relation to the Board membership:

“(i)     one of whom is to be a medical practitioner, or a registered nurse, with expertise in evidence-based management of work-related injuries; and

(ii)    one of whom is to be an Australian lawyer with experience in workers rehabilitation and compensation matters; and

(iii)   one of whom is to be a person with extensive experience in the workers compensation insurance industry; and

(iv)   one of whom is to be a person with expertise in the evidence base related to management of work-related injuries and who advocates for, or has experience in respect of, the interests of injured workers; and

(v)    one of whom is to be a person with expertise in the evidence base related to management of work-related injuries and who advocates for, or has experience in respect of, the interests of employers.”

This amendment was supported by the Legislative Council and later accepted by the House of Assembly.

The Legislative Council Amendments also included provision for a review of how the new board was functioning. Hansard (23 August 2017) records:

“Ms FORREST – Madam Deputy Chair, I am inclined to support that this new clause A be read a second time, because we are talking about a separate process done by an independent body.  It is not just a review within the department looking at the functions of the WorkCover board.  This is looking specifically at how things are functioning with this new board structure.  I took on board the comments.  It was a close vote on whether the member for Rumney’s amendment would be agreed to or not.  If the operation of the board does not adequately see employers’ interests or employees’ interests addressed, for example, then noting that in the annual report is unlikely to occur easily.  It is not going to be easily identified that is happening because it is not something the annual report is going to cover.

Sure, the annual report covers the functions of the WorkCover board and WorkSafe.  I believe I have noted that report in the past, particularly when we note the workplace injuries.  I was trying particularly to make the point some years ago that mining is not the most unsafe environment to work in as a lot of people think.  The most unsafe environments to work in are actually the service industries, construction and forestry.

We note these reports but it does not go to the level of detail about how the board is functioning in its new format.  It is reasonable that there is an independent review of this as the new clause says the independent review is to be carried out by persons who, in the minister’s opinion, are properly qualified, but also one or more who are not employees of the state or the agency of the state, so there is that independent oversight.  You can confidently get input from employers and employees to be sure that everyone’s interests are being met.  A friend of mine often raises concerns with me about matters that arise, such as levels of incapacity and how those things are assessed.  There are opportunities to raise those things.  We can ask questions and we can note an annual report, but this is not the same as the reporting them in annual reports.  It is a separate process to see how the new board function is working.

If interests of the key people are not being well served, those in whose interest this bill is all about – the employers and the employees – perhaps it does need review and change.  That is the only way to be really sure.  An independent review would delve right into that and look at it, rather than the overarching question of how this whole department and section is working.”

The New Board

I should explain that I was an applicant for a position on the new skills-based board, but although I had an interview, I was not successful in gaining a position on the board. While there is some disappointment for me personally, there are many positives with the new board appointments and I congratulate the Government on agreeing to the legislative amendments to encourage a better set of skills on the board and the balance inherent in the new board appointees. The new board gives me hope that some of the issues with Tasmania’s workers compensation scheme can be addressed.

The appointee with expertise in the interests of employers (Julieann Buchanan) is an Occupational Therapist (OT) with significant expertise in rehabilitation and injury management, which means, for the first time, there will be expertise on the board related to this field.

The appointee with expertise in the interests of workers (Jessica Munday) has enthusiasm and understanding of the issues as they affect injured workers and experience with the Worker Assist service.

I understand the legal appointee, Mr Graham Wood has experience in acting for both insurers and injured workers.

In addition, the WorkCover Director of Compensation and Communication has changed. Vicki Tabor is an experienced health practitioner with qualifications as a registered nurse with post graduate qualifications  in OHSM and Ergonomics who has worked extensively in the field of OH&S and workplace rehabilitation and, no doubt, will bring additional skills into the WorkCover organisation itself, to complement those of the board. Prior to taking on this role she was Compliance Manager with WorkSafe Tasmania.

One disappointment was that meetings of the newly formed Medical Advisory Committee/Panel to the board (consisting of John Saul [AMA]; Ian Almond [RACGP] and myself [AFOEM]  has been put on hold, pending clarification as to whether the new board supports the need for this advisory group. I hope that this represents only a temporary hold on this important mechanism for medical input into the operation of the scheme.

Overall, I feel quite positive that  the new board, with new and enhanced skills relating to data analysis, rehabilitation and injury management that can initiate evidence-based changes to Tasmania’s WC Scheme.

Let’s hope the legislated independent review in a few years’ time provides a positive analysis of the new board structure.

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Creating Healthy Boundaries

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I recently had a discussion with Greg McCarthy, until recently, CEO of RTWSA (South Australia’s Workers Compensation Authority). Greg explained to me some of the thinking behind the revamped South Australian workers compensation scheme introduced under his stewardship.

While I would accept that it is a political decision to determine the extent of coverage provided by compensation schemes, there is one concept adopted by the current SA model that has relevance to health outcomes. That is the concept of legislated ‘hard’ boundaries.

The limits to an insurer’s liability to provide funding can be ‘soft’ or ‘hard’. A ‘hard’ boundary is one where there is little or no scope for challenge. Such boundaries include cut-off dates, whether for period of income support or age restrictions on claimants, and ceilings on amounts payable. The current SA scheme limits income replacement to 2 years. Even the best lawyer can’t argue an entitlement beyond a cut-off date!

An example of a ‘soft’ boundary is the provision in Tasmanian Worker’s Compensation Legislation (and most worker’s compensation schemes) to limit liability for psychological injuries. The Tasmanian provisions are intended to save employers from liability where a psychological injury results from a reasonable employment decision. These include psychological injury arising from disciplinary action for poor employee performance or the psychological consequences for an employee missing out on a promotion.

In my experience, the reality is that the existance of these psychological injury exclusions leads to an environment where a very high proportion of psychological injury claims in the Tasmanian Scheme are disputed. There is significant ‘collateral’ damage from this provision for workers who have valid claims, but are rejected by the initial claims management processes.

Another ‘soft’ boundary is the stipulation that ‘reasonable’ medical expenses are covered by a compensation scheme. There can be protracted and expensive argument about whether some significant medical procedures, such as spinal fusion or neurostimulator implants are reasonable expenses. Sometimes the legal costs of the ensuing argument is more expensive than the procedure itself! At the GP management level, there can be debate or delays in proceeding with relatively routine medical investigations or treatment, causing delay and frustration.

The so-called ‘Narrative’ test for Victorian workers to gain access to Common Law (as an alternative to meeting the relatively high WPI criterion for access), is another example of a ‘soft’ boundary that has resulted in a burgeoning video surveillance industry to provide evidence to satisfy the legal system in its attempts to adjudicate on access to Common Law.

Although I have not had direct personal experience, I understand that legislated requirements to review work capacity in some Australian Compensation Schemes act as ‘soft’ boundaries. These have resulted in considerable waste of sources to settle the arguments that ensued from these requirements.

The negative effects on recovery and the psychological impact from the delay to resolve issues at these ‘soft’ boundaries need to be factored into the equation to optimise scheme design. What might be a best-practice legal process to negotiate a ‘soft’ boundary, through its inherent adversarialism, will result in a direct financial cost, and perhaps more importantly, often cause a delay that will impact of the health and rehabilitation outcome. This can undermine the intention of the scheme to assist recovery and return to work.

A ‘hard’ boundary alternative to liability for medical treatment, might be to specify limits to spending on treatment to a $ figure per case or having a blanket exclusion for questionable expensive medical procedures. The debate about what is reasonable is held at a ‘system’ level, rather than being worked at on a ‘case by case’ basis where individual claimants are directly impacted.

In my experience talking to patients under my care, the existence of  a ‘hard’ boundary can be helpful in highlighting options available to progress treatment and recovery and remove the delay, cost and stress of legal involvement to pursue an uncertain outcome.

AN IMPORTANT CONSIDERATION FOR COMPENSATION SCHEME DESIGNERS!

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The State of Play in Tasmania

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This article is based on my introduction to the presentation by Professor Alex Collie at the Pre-Symposium Seminar held in Hobart on 15 June 2017.

I have previously tried to explain the reasons for my interest in reform of compensation systems. I made an amateurish video to explain, but my wife was aghast that I was wearing what appeared to be a flannelette shirt in the video. That probably represents the Sharman background as farmers on Tasmania’s NW Coast!

As I tried to explain in the video, what I see in my current practice, on an almost daily basis, are workers whose recovery  is unnecessarily impeded by ‘the system’. While some have argued that Tasmania performs better than inter-state jurisdictions, I don’t think it matters too much about how we compare, rather any worker’s recovery unnecessarily affected by the system is a waste. That’s my concern.

I started my medical career in Tasmania in 1981, working at Tullah on Tasmania’s West Coast as the doctor for the Construction Workforce for the Pieman River Hydro-Electric Scheme. I vividly recall 3 fatalities during that period – a construction worker on a power station roof feel to his death, a loader operator in a sand quarry was buried alive when the wall of the quarry collapsed and a diver who died trying to retrieve valuable stainless metal gates used to close off the diversion tunnel from very deep within the cold and dark waters of the Murchison Dam.  During my later period of employment with the Hydro, I recall an incident causing multiple confined space deaths  at the Tungatinah Power Station in the Central Highlands. There were serious accidents that didn’t result in death and even some positive stories. I remember a seriously injured construction worker who went on the a prominent career in Human Resources in the Mining Industry as a result of his incapacity for ongoing physical employment.

What I have seen over the years is a reduction in these types of incidents with improvement in workplace safety generally, as reflected by falling incidence of workplace injury and associated compensation claims. I have however witnessed an increasing problem with chronic pain and secondary psychological consequences resulting in long-term disability following work injuries. Most of these cases end up receiving income support from Centrelink.

The overall trend in claims management has been a tougher approach. I recall the days when the Tasmanian Government Insurnace Office (TGIO) operated in Tasmania and acted as the insurer for the Hydro Workforce. There was sense from the claims personnel of doing what was right for the greater good, not just the financial benefit of the insurer they worked for. That ethos has all but disappeared. In the late 1980’s there was enthusiasm for the new concept of ‘workplace rehabilitation’ and I have a certain nostalgia for a generally positive and co-operative approach to help injured workers back to work at that time.

In recent years, I have become ‘politically’ involved because of my observations about escalating adversarialism and worsening claims outcomes from a medical and rehabilitation perspective. My observation might reflect the change in the work I undertake. I have changed from a role as company doctor involved in strategies for both prevention and rehabilitation through to my current role where I see the worst end of the compensation system – the litigated, controversial and long-term cases of incapacity.

An alternative explanation is that the apparent deterioration in our systems is due to increasing numbers of people with age-related and degenerative disorders being managed through our compensation systems where they don’t really belong. Or perhaps the change results from increased focus on financial outcomes and scheme viability. I can’t answer that, only guess. The evidence might provide some clues.

When I started talking to other practitioners about these issues, I became aware there were similar concerns amongst a variety of medical, allied health and rehabilitation practitioners, both in general medical and rehabilitation practice and the specialities that become involved in long-term compensation cases – pain physicians, clinical psychologists, rehabilitation physicians, orthopaedic & spinal surgeons, and psychiatrists.

Many doctors tell me they only get involved in workers compensation reluctantly and in some fields it is difficult to get a doctor prepared do see a workers compensation case at all.

The other significant development in recent years has been the apparent exponential growth in research in the field of Compensation Health.

The RACP/AFOM document “Compensable Injuries and Health Outcomes” released in 2001 stated:

There is good evidence to suggest that people who are injured and claim compensation for that injury have poorer health outcomes than people who suffer similar injuries but are not involved in the compensation process”

and

“However, research into causes of poor health outcomes for these people is fragmentary and inconclusive. Not enough is known of the effects of different types of compensation schemes or different methods of management of cases (by all practitioners involved) to allow the development of a  ‘best practice’ model. 

Any attempt to ‘reform’ the compensation system(s) must be informed by further rigorous research”

Since that time there have been organisations set up dedicated to research in this field e.g. ISCRR (Victorian-based) and the Recover Injury Research Centre (Qld Based).

When I was involved in putting forward ideas about how to improve the system, there was fierce resistance, initially from the insurers. I encountered this personally when I made a presentation a few years ago to the Private Insurers Group on behalf of the AMA.  Luckily that initially hostile reception has led to processes being put in place that have allowed constructive ongoing communication to occur between doctors and insurers.

When the same ideas were put to WorkCover as the regulator, it was questioned whether there was indeed any problem at all. WorkCover drew attention to Tasmania’s performance relative to mainland jurisdictions with the conclusion that Tasmania sits at the top of the “League Table” as follows:

  • the lowest proportion of compensated time loss payments (31% off work at 3 months in a 2010 ISCRR study)
  • According to the SafeWork Australia RTW survey, Tasmania achieves a 92% “Return to Work Rate” and 86% “Current RTW Rate”

This data has been questioned as to whether it accurately reflects health outcomes within compensation systems. Whether inter-jurisdictional compaisons can be made using this data has also been questioned, as follows:

  • Much of the data comes from insurers. Time loss data reflects time off where compensation was paid and doesn’t reflect actual recovery times (one researcher has suggested this approach underestimates time off by between a factor of 1 and 7 at one year post claim)
  • The SafeWork Australia RTW survey captures data about whether a worker has participated in any type of RTW programme at a defined point during the course of their injury, not their capacity to return to pre-injury or even full-time alternative employment
  • It is not valid to compare performance between jurisdictions because of the very significant difference between the way in which each system operates

There does seem to be agreement though that, if there was a problem, it is only 5-10% of cases managed through the workers compensation system. The majority of straightforward cases do well. Like in most systems though, it is the complex 5-10% of cases that incur the majority of the costs, both financial and health-wise.

WorkCover have publicised the results of the RTW survey and highlighted that Tasmania is performing well:

For a meaningful debate about the performance of our workers compensation system we need facts and evidence, not just speculation and opinion.

I asked Alex Collie, as former CEO of ISCRR and now Director of the Insurance Work and Health Group at Monash University about evidence about the following matters:

  • How do you measure the performance of compensation systems?
  • Can you compare different jurisdictions in relation to performance?
  • Are doctors withdrawing?
  • What does the existing evidence base tell us about
    • The Policy Environment and how our policy settings affect worker outcomes
    • How interactions between doctors, insurers & employers in injury schemes affect worker outcomes

My personal interpretation of the evidence I had seen was that there is a need for major reform of how Governments should manage “work disability”, including workers compensation. There is enormous waste and “collateral damage” to workers health from liability assessment processes. Resources expended on determining which system injuries affecting work capacity belong within, is a waste within our financially strapped health care system. Tasmania at present is unfortunately at the forefront with extreme pressure on its Public Hospital System. My presentation at the main TAVRP Symposium “The Dark Side of Rehab” on 16 June 2017, focused on that waste.

A link to my summary of Professor’s Collie’s responses to my queries and some of the other key presentations at the TAVRP Symposium is provided below:

TAVRP Symposium Evidence Summary

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Waste-Not Want-Not!

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I hesitate to admit it, but I have been wasting my time and energy, the medical expertise that I possess and other people’s money.

In my practice I undertake one or two medico-legal assessments as an independent doctor each week on workers I have never seen before. There were about 65 of these assessments during 2016 and about 30 so far this year. About 70% of these assessments relate to injured workers being assessed about their entitlements within the Tasmanian Workers Compensation system and a further 20% are motor vehicle accident cases. They cost the person or organisation who requests the assessment just over $2,000 each, on average. In addition, there are nearly as many review assessments of workers I have previously seen.

On that basis, at this practice alone, over $150,000 is paid each year for independent opinions about workers being managed within the local workers compensation and motor accident jurisdictions. These opinions rarely contribute directly to an injured worker getting better, they are used to sort out whether the person belongs in a compensation system or not, whether they are entitled to treatment and the extent of their entitlements. I like to think my recommendations about treatment or the subsequent resolution of liability issues will actually help recovery, although I have no data about that, except the occasional anecdote There is however a significant body of research evidence that confirms that Independent Medical Examination (IME) processes can have negative effects on recovery and return to work, as well as being a source of significant frustration to the doctors providing treatment.

I have analysed the independent assessments undertaken at this practice on claimants within the Tasmanian workers compensation system. On average each claimant has had several IME assessments conducted by other practitioners before they had been seen at this practice.

I recently reviewed a worker for medico-legal purposes and counted up about 25 reports that had been prepared over the 6 year period of his claim, included more than 10 IME assessments, with the balance being formal reports sought from treating practitioners. Perhaps up to $50,000 had been spent on reports in this one case!

On the basis of the above estimates, it seems likely that about $0.5M annually is spent on medico-legal assessments on the workers being assessed at this small practice alone i.e. extrapolation of this practice’s data to include the costs of the assessments already undertaken by other practitioners.

In Tasmania there are about 7,500 workers compensation claims each year. If 5% become “litigated’ and/or complex, that is about 375 cases per year. Some estimates put the number of complex cases at 20%. That would equate to 1,500 claimants annually.

If my own practice experience is typical of litigated/complex claims, that would mean more than $10M is spent Statewide on IME assessments in the workers compensation system. Add to that the legal costs of both the insurers and the workers, surveillance and related administrative costs and the costs to determine liability and entitlements are very significant.

According to WorkCover Tasmania figures, legal and investigation payments (including IME assessments) in the 2015-16 year were nearly $15M (and rising each year). In addition, there are legal and other investigation payments included in the WorkCover figures for lump sum settlement payments. This suggests that legal and other investigation payments might be as much again as the payments for IME’s.

An important function of the WorkCover organisation is to oversee the system. WorkCover is principally funded by a levy on the premiums charged at a rate of about 4% of $150M total premium pool i.e. about $6M. This represents a necessary further overhead expense on our compensation scheme.

Within just the workers compensation system of a small state like Tasmania there is probably more than $20M spent annually to determine eligibility, entitlements and to oversee the system. A large proportion of this activity utilises medical resources.

There is the motor accident insurance system as well with over 2,500 claims a year and $43M paid in claims.

The total paid is likely to be nearly $30M per year between those two schemes on independent medical, legal and investigation costs without any direct benefit in terms of provision of health care and rehabilitation. These processes also have potential to worsen outcomes and further increase costs by driving up treatment costs and prolonging recovery.

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The state health systems are crying out for money to meet the mounting health care costs of a growing and ageing population. For example, there are serious problems with under-staffing and lack of beds at the Royal Hobart Hospital. Better funding for general practice would help keep patients out of hospital, but that will not be enough.

Injured workers and those injured in motor vehicle accidents that choose not to claim and those excluded from compensation systems or don’t recover can end up receiving their treatment through this stretched and under funded health system.

On a national scale the costs of work disability are staggering. Professor Alex Collie from Monash University has estimated that in Australia $25B annually is spent on income support though the various workers compensation and motor accident schemes and the Centrelink Disability Support Pension for people with reduced capacity for work for health reasons.

Real value to the community comes from funding treatment and rehabilitation and improving health and capacity to work. These services add real value, not just sorting out which ‘silo’ a patient is managed within.

The trend in interstate jurisdictions is to limit entitlements for workers compensation, covering only 2 years post-injury. Perhaps it would be better to have clear-cut liability criteria for compensation, e.g. only traumatic injuries and/or time-restricted benefits to reduce the waste of resources on IME, investigation and legal expenses. The resources saved could be utilised to fund return to work services, rehabilitation and health care services to address work disability no matter what is the cause of work incapacity. Some proactive employers already fund rehabilitation and return to work irrespective of causation. They value their workers.

Such an approach also has the potential to reduce the toxic effects of compensation systems,  improve health outcomes and save money, but there would be many challenges in such a change for the current stakeholders and various vested interests.

I will expand on potential new approaches in my next blog article.

FOOD FOR THOUGHT!

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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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