“The Injured Person as a customer in the Tasmanian Workers Compensation System”
A medical colleague commented to me recently about the above title of a presentation by QBE Insurance to doctors in Hobart. Can an Injured Person be a customer?
QBE’s intention was to emphasise a positive approach to managing injury claims to achieve the best outcome for everyone. Their stated goal is to create:
“A 10/10 experience for all of our customers, including the Injured Person”
QBE’s commitment is impressive, recognising the important role of the insurer as a key player in addition to the role of the Injured Person, Employer and Medical Profession.
QBE’s information includes the following statements:
“The QBE Quality Claims Program is based on the QBE Values of OPEN MINDED, NETWORKED, EMPOWERED, QUALITY APPROACH, BUSINESS ACUMEN, EXCELLENT OUTCOME”
“Regardless of the liability decision made and even where there is a genuine dispute, the process aims to focus on the recovery and return to work of the injured person. Throughout the process of assessing liability there should be a concurrent focus on the recovery and return to work of the injured worker”
According to QBE, in the past a higher proportion of cases were disputed and legal costs sometimes exceeded the amounts paid for income support and medical treatment, however in 2014 97% of all claims have been accepted.
QBE’s new approach is summarised as follows:
“Consideration of the injured person as a customer in the Workers Compensation system is seen by QBE as ‘best practice’. We aim for our Case Managers to exceed the expectations of the injured workers by being contactable when needed; acting above and beyond to help; creating a smooth process for the injured person; being efficient; fostering great relationship with their Case Managers and ensure that we are courteous and supportive through their injury.
Critical to the process of QBE fulfilling this role is developing relationships of mutual respect and open communication with the treating practitioners providing care for the injured workers.”
Such a commitment by an insurer is very positive and should be commended.
Factors that can influence the level of ‘care’ by Claims Managers
Leaving aside for a moment the commitment to care for injured workers by QBE, the description of the injured worker as a customer does however raise an important question about the relationship between the various parties within our workers compensation system.
In an ‘underwritten’ State like Tasmania, private insurers are licensed by Government to be able to provide workers compensation insurance to employers. Every employer is legally obliged to have in place such insurance. As with any type of insurance there is a contract of insurance between the insurer and the insured i.e. the employer. The market can be competitive with various factors influencing the premium charged, most importantly the employer’s claims experience. The employer, in reality, is the insurer’s customer. The employer (the ‘insured’) is indemnified against the costs if an employee is injured. The extent of liability is defined according to relevant legislation. In Tasmania it is the Workers Rehabilitation & Compensation Act and any liability that arises at ‘common law’.
Is an injured worker under such an insurance arrangement any more a customer, than your car is a customer under the provisions of your personal motor vehicle insurance?
While a health professional has a ‘duty of care’ to their patients and an employer has a ‘duty of care’ to their workers, does an insurer administering a workers compensation claim have any such duty towards an injured worker? I am not aware of any clear legal duty by the insurer towards the claimant, rather their duty is to their ‘insured’ to fulfil their obligations under the contract of insurance.
My experience over the last 20 years, across a variety of employers and insurers, is that the extent to which ‘care’ is provided by an insurer to an injured worker can be influenced by the philosophy of the employer and their ability to influence their insurer. The converse can also occur i.e. an insurer can positively influence an employer by reinforcing the employer’s legal obligations about rehabilitation and compensation and encourage a helpful supportive approach.
An employer’s influence on an insurer can be affected by the importance the insurer attaches to the business, and the size of the premium paid by the employer. On that basis insurers can show a greater degree of care to injured workers in circumstances where a large caring employer influences the insurer’s approach. A small employer, even if they have a positive caring approach to their workers, will probably have less influence on an insurer who can dictate claims management on the basis of the terms of the contract of insurance. In such circumstances a positive approach by the insurer is more important than the approach of the small employer.
This principle is demonstrated by self-insurers who often demonstrate a more caring approach with claims management towards their injured employees.
An employer who has changed insurer has even less influence on the approach taken by their old insurer to the management of claims and hard-nosed claims decisions are often seen in such circumstances.
How can an Injured Worker really be a Customer?
I suspect that can only occur if injured workers accept some financial responsibility and contribute towards the cost of insurance carried by their employer. There seems to be a move towards limited liability within workers compensation and motor accident schemes in response to increasing cost pressures and their affordability to Government and Industry. In some jurisdictions benefits are limited to income support for 2 years or caps on medical expenses, unless there is a severe injury exceeding a defined impairment threshold.
Perhaps a solution is to have a statutory minimum for insurance cover – say 2-3 years of full income and medical benefits, but beyond that employers and employees can negotiate to agree on a level of cover with a contribution from the employee. Perhaps extended cover could be provided by an insurer that specialises in administering long-term benefits.
In my experience insurers in underwritten schemes prefer time limited liability rather than administering long-term benefits. Again like car insurance they are happy to fix or replace a written off vehicle and close their file, but not administer continuing payments ad infinitum.
Such a change would provide ‘skin in the game’ to workers and some influence through employee organisations in the way longer term incapacity benefits are administered.
If the costs of providing open-ended workers compensation benefits become too great government will be forced to structural reform along these lines. There will clearly be significant opposition from unions and employee organisations. There will be legitimate concerns that any reduction in an employer’s liability for compensation will work against injury prevention, as do restrictions of common law liability, but perhaps contributions from employees towards insurance arrangements for long-term injury might be the only means for the injured worker to become a genuine customer.
No, I don’t think the Injured Worker can be a true customer in our current workers compensation schemes, but a duty of care and commitment to treating injured workers in a caring manner by all parties will go a long way to improving outcomes for those injured at work.