The focus of my blog has been about changing the system to reduce the risks of a poor health outcome, but is there another facet to solving the problems I have highlighted? Should doctors make a conscious effort to keep people out of the system?
I recently attended a meeting where a senior member of the Hobart judiciary suggested that ‘tough love’ should be applied by doctors to their patients to avoid them becoming entrenched or to extricate them from compensation systems. Perhaps the comments were directed at me personally, I don’t know, but I probably do have a reputation for being supportive of people injured at work.
Recently another doctor has joined my practice to start a career in occupational medicine. My role in mentoring brings into focus the role of doctors generally and particularly those who see patient’s with work-related incapacity. I want to teach optimum practice, in the best interests of health outcomes.
Although the insurers and the judiciary cannot be aware of people who never put in a claim, it is quite a common experience in my practice for patients to ask about whether they should put in a WC claim. Many never put in a claim despite having an eligible condition.
Recently my practice has received an unusually high number of referrals from General Practitioners to help their patients decide whether to pursue a claim for workers compensation, either within the Tasmanian workers compensation system or with Comcare. Over recent weeks two-thirds of the referrals to my practice from General Practitioners, have been in relation to whether the worker has a ‘case’ to pursue a workers’ compensation claim, although one patient had already concluded that claiming compensation was not in their best interests, despite evidence of a work-related disorder.
There were some very complex scenarios amongst these referrals with a mix of constitutional factors, work-related factors (both acute events and task demands that might create a risk), in addition to non-work related recreational and domestic injuries and activities. On top of that, of course, is the psychological makeup of the person that can have an influence. Of those cases, one didn’t have clear evidence of work causation from a medical perspective and the others mostly had a mix of work-related and non-work related factors, but a lawyer would need to advise whether the work-related factors were sufficient for eligibility for compensation.
There is a unique opportunity with workers who come and see a doctor at a point before they decide to put in a claim. There is potential to steer them into or away from the system, before it ‘grabs hold’. Many patients tell me their General Practitioners advise them (or sometimes insist) that they put in a workers compensation claim. I am not sure whether this occurs because the doctor believes it is in the patient’s best interests or whether an accepted claim provides a source of funding for treatment.
My approach is different. It is important that the patient themselves decide about whether to claim, but that needs to be an informed decision. I explain the pros and cons of entering the workers compensation system and some of the factors to consider, apart from the primary issue of evidence of causation from a medical perspective, for example:
How serious is the health problem? Can you manage it with your personal resources? Does the condition risk your work future?
What is your relationship with your employer? Will they support you making a claim? Will a claim damage your employment relationship or jeopardise future employment? What is the reputation of the insurer in respect of their response to a claim?
Are you aware of the potentially stressful processes involved with workers compensation, i.e. loss of personal control, attending IME assessments, providing your personal details to a third-party etc?
Sometimes I might indicate that a legal opinion is required, if I am pressed on eligibility for compensation, but I am conscious that even suggesting legal advice may put them on a path to an adverse outcome.
It is the patient’s choice whether to make a claim, and if that choice is made with an understanding of both the risks and benefits, then I would respect that choice and provide support in relation to medical evidence about work causation, if it exists.
A more difficult situation for a doctor to confront is a patient who is already ‘in the system’, where the doctor is providing ongoing medical certificates to support a claim and there is no progress. In circumstances where enmeshment in a compensation system is working against recovery, how can a certifying doctor address the problem in the best health interest of their patient? I think this was the situation referred to by the senior member of the Hobart judiciary where ‘tough love’ from doctors was needed.
Leaving aside the concern that some doctors might have about upsetting a long-standing patient of the practice, and perhaps losing a whole family as clients of the practice, there are considerable difficulties for a doctor to stop supporting a claim already underway.
Firstly, some patients I have cared for told me at the end of the process, after their claim had settled, how important it was that they had consistent support from a doctor in an otherwise ‘uncaring’ system. To withdraw that support, even with the best intentions, can potentially have serious psychological consequences.
Secondly, to withdraw certification support can mean there is no treatment as the patient would be unable to fund treatment themselves.
Often the best a doctor can do is to discuss the benefits of exiting the system and encourage independence and taking back control, so that certification is no longer required, but that seems to happen relatively rarely in practice. If there is a supervening event, such a further non-work related injury or significant psychological event, there might be an opportunity to stop supporting a claim, but that too is unusual.
There is no easy solution.
It is true that ceasing support for a claim might help that patient exit the system and make a better recovery, but the likely outcome is that the patient will change doctors and continue in the system or suffer from lack of any support and the psychological consequences.
It might be easier if the legal definitions of injury and disease causation were changed to be more in line with medical definitions of causation. Such a change might make it easier for a doctor to explain that their patient is no longer entitled to compensation and that certification cannot continue. At present an injury occurring in the course of employment and any consequences is compensable. A disease where employment has contributed ‘to a substantial degree’ is also compensable.
Perhaps a change to a definition where some sequelae of injury are excluded or an arbitrary time limit is applied may assist, at the risk of incurring the wrath of those concerned about legal rights.
A better solution however is to have a system where the doctor can flag situations where the compensation system is working against recovery and the patient can be directed into a process to finalise the claim as painlessly as possible.
Insult and Injury 
Your understanding of what happens to people on WC may be accurate but what you demonstrate is that it is the management of system that effects the health outcomes for the worker. The point is that the system it self is fraught with danger because those managing injured workers are not doing the job intended by what is determined as “beneficial legislation”. To whose benefit?, is the real question to be asked. The matter of whether the injury is as a result of the workplace is a legal question that is based on weighing up many aspects of the case, not just the medical evidence so it is not really the responsibility of any doctor to determine a legal question. The point for the doctor to consider is whether the injury is concordant with the facts of what happened to the worker, ie whether there is any possibility the workplace accident could exacerbate an existing condition or could have resulted in the injury. If someone falls over at work and suffers any injury then it is only the responsibility of the treating doctor to determine if there is a resultant injury. If an injured worker states they have a broken leg because they fell over at work your role would be to diagnose a broken leg and unless you know otherwise then it is not up to the doctor to determine the injury did not happen as a result of the employment of the worker. If you had witnessed or had a witness statement that the injured worker broke their leg outside the workplace you would be compelled to confront the injured worker and refuse to support their claim and you would be required to report to WorkCover the possibly of such fraudulent behaviour.
The whole issue is not whether the injured worker should put in a workers compensation claim but why they are being further injured when they do. It is the law that an employer must have workers compensation to cover costs of treatment and support of anyone injured as a result of their employment. Their is no choice in this for the employer just as their is no choice to notify the injury/incident for the employer. The notification is legislated to be carried out in the workplace and is supported by the subsequent doctor’s certificate. The only choice for the doctor is what diagnosis to write on the certificate and what protections to prevent further exacerbation of the injury. When a genuinely injured worker does not put in their claim they are taking from the Medicare budget or from their private health fund thus creating further burden ie increased costs, less services for the rest of society. In this current climate it is concerning that insurers should be escaping genuine legislated costs because their treatment of the genuinely injured has become so punitive treating doctors are considering advising an injured person not to make a claim.
There should be no question of weighing up the pros and cons of making a wc claim because if you are injured at work you are injured at work. There is a whole minefield of dangers for any doctor who does not support the making of a genuine claim. Any medical certificate is a legal document and if you are prepared to give a certification it must be concordant with the facts as you believe them to be. No treating doctor should be complementing false or misleading certification just to protect a worker from a punitive system.
Have you considered the case where a claim is not made but later the worker is further injured because of exacerbation of the original injury. This creates a legal problem for the injured worker who may then require surgery. An example is when someone injures their back at work and has a disc protrusion that is treated with physio. Say the worker sees their doctor and they determine not to make a WC claim so there is no evidence in the doctor’s notes or no evidence of notification in the workplace. Later, after the worker has returned to work after taking sick leave, the worker who has been given no restrictions (as would be the case with a WC claim) has continued pain that becomes more severe and radiates to the limbs until they cannot go to work at all. Then it is discovered the disc protrusion is irritating the nerve root and there has been further damage due to the ongoing unrestricted work. The person then decides to make a workers compensation claim as they are off work for an extended period being hospitalized and in traction. The insurer who has no evidence of the initial workplace injury then denies the claim saying there is no workplace injury only a pre- existing condition that is not as a result of employment. Now the doctor needs to explain why they did not carry out the correct certification for the initial injury in the first place and why they did not have any workplace restrictions noted to protect the injured worker from further injury. Who then becomes the responsible party? If the injured worker has surgery as a result but there is residual injury and they cannot return to work at all without risk, the doctor’s failure to adhere to the wc legislation in the first place put the worker at risk and is a breach of their duty of care and the injured worker may also be deemed to have contributed to their own injury. Is any of this being considered when injured workers and their doctors avoid the system?
Treating doctors know their patients better than any case manager or any IME who sees them for a as little as a few minutes or an hour or so and as such you need to either support the genuinely injured worker with all it takes to do so or refer them to someone who will and you to need to fight against what appears to be corrupt behaviour in this system rather than avoid the fight, as all you are doing when you avoid the system is ensuring these punitive behaviours continue. The wc system has devolved to the point everyone is afraid of being in it because too many people have already put their head in the sand and those who have the power to speak out don’t.
Is it not mandatory for doctors to notify if they think another doctor is acting fraudulently, inappropriately, unethically or unprofessionally? There are a number of IMEs whose reports come into question but very few other doctors who are willing to write to the relevant medical board to highlight such behaviours when treating doctors willingly express such disapproval to injured workers. Everyone has to stand up an fight for proper justice not just injured workers.
Peter, in my opinion, the senior member of the judiciary may have been “out of line” in his comments. Judges should not play at being medical practitioners and vice versa.
Thanks Justice Seeker and John for your comments. I would also like to thank all those who commented on the Workers Compensation Australia Group on LinkedIn. It made a very informative discussion, particularly the information from SA from Rosemary McKenzie Ferguson.
In response to Justice Seeker, I don’t think the approach I outlined in my article is in contravention of any legislation, it is clearly a choice by the worker as to whether to put in a workers compensation claim. The legal onus on the doctor is to provide an accurate assessment of the worker’s condition to support a claim, where the worker chooses to put in a claim.
My approach is to try and make that an informed choice. I agree that if a worker has suffered a broken leg and it is claimed that it occurred at work, then it is a straight forward matter that a claim is supported. The cases I was referring to were less clear-cut with ‘diseases’ of gradual onset where there were both underlying predisposing factors, work-related factors and other factors outside of work. For example, a worker with pre-existing degenerative spinal disease whose condition has become symptomatic in the course of work and where there are also activities undertaken outside of work that could also have contributed to the condition. This is the kind of case referred to my practice for advice about work causation. I do however agree strongly about the concerns raised about cost-shifting onto the Public Health System, where cases that are clearly work-related end up being paid under Medicare because the system is too toxic for the worker to have their work-related condition managed in the WC system. This is very unfortunate. The overall burden of work-related disease and injury is therefore potentially significantly underestimated leading to false reassurance about the incidence of work-related ill health. This may become a bigger problem with an ageing workforce and the expectation that everyone in the workforce will work to a significantly greater age. I also agree with your comment:
‘The whole issue is not whether the injured worker should put in a workers compensation claim but why they are being further injured when they do.’
That is the whole focus of my blog – Insult and Injury! This article was an aside, looking at matters from a different angle.
In response to John, I don’t think the judicial officer was ‘out of line’ rather the purpose of mentioning the comment is that it does raise an important issue about the doctor’s role in worker’s compensation. It provided a useful discussion point! Admittedly the legal system doesn’t see the same problems as the medical profession, but I think it was a valid comment. Doctors do need to show ‘Tough Love’ at least to the extent that they look at their actions in terms of long term outcomes, rather than just pleasing their patients. The lawyers may have a different concept of ‘Tough Love’.
Once again thanks to everyone for constructive comments and dialogue.
A local Hobart Solicitor provided this comment by email:
Hi Peter,
Further to your email in my opinion a doctor should encourage workers to claim for workers compensation.
The legal test for causation is the but for test, that is if there had not been an accident, would the worker have the symptoms and disability he has after the accident?
Any underlying vulnerability is legally irrelevant.
It is in the public interest that all workers be entitled to workers compensation and receive their full entitlement, because the injuries and diseases caused by employment should be met by the employer, who can pass on the cost in the price of the costs and goods of the services produced by the employer.
If that does not occur there is a market distortion, and the employer externalises his costs and passes the costs on to the injured person and their relatives and friends and to the tax payer through the public health system and the social security network.
Regards
John Green
Good point John Green.
I agree and make the point that employers are legislated to have Workers Compensation insurance in all states so the burden falls on the whole of society rather than through the insurance process (which is equipped to deal with the costs of claims) when someone fails to put in a workers compensation claim if they are injured at work. With high levels of economic stresses faced by those already in receipt of disability and other commonwealth pensions is it really fair to take money from people under that system to assist someone who really should be accommodated by an insurance scheme? When someone fails to put in a Workers Compensation claim it results in savings for those who should be treating injured workers in the manner “beneficial” legislation intended. The question for a treating doctor is only one of whether their patient’s injuries are contributed to from the workplace accident, even if only an exacerbation of an existing condition, as the workers compensation system takes account of the percentage of injury to be attributed to any disease or pre-existing conditions.
The NTD can have a clear conscience when supporting any injured worker who reports an injury as long as the NTD has evaluated the possibility the injury/symptoms have occurred from the incident in the workplace and is acting in good faith. It is up to the insurer to prove otherwise and to find the evidence if they think the worker is fraudulent.
There are also time limits to be adhered to in the system and there are many times when injured workers who do not follow process end up with no claim or redress if their condition deteriorates. It is not wise for a doctor to advise against a Workers Compensation claim because we don’t know the future of the worker or the injury. The worker is also put at risk if they don’t claim and they put themselves at risk of further injury without the protection of suitable duties and rehab provided at the cost of the insurer.
I haven’t heard of any treating doctors who act in bad faith by encouraging people they don’t think are injured at work to put in wc claims but I do know of many who refuse to take on workers comp patients because they don’t want to be harassed by the insurers. It is a pretty bad system when treating doctors and the injured workers have to weigh up whether the injured wants to forgo the benefit of income assistance, treatment, rehab training, support and protection from job loss in the workplace because of the likelihood of being bullied and victimized in the process.
The lesson is, as always, we must all support the process by making every effort to expose bad behaviour and to ensure better accountability through better oversight machinery.
Doctors also have mandatory notification obligations if they consider other doctors are behaving unethically and no matter how difficult that is it is like all aspects of life- “Evil proliferates when good men do nothing!”
People only get away with unethical practice if we don’t stand up against it together.