Tilting at Windmills?

Tilting at Windmills2

 

In response to my recent article commenting on the ComminInsure scandal there was a feisty response from Richard Gilley on LinkedIn – in the  Group Workers Compensation Australia.

The thrust of his comment was to point out the conflict between a GP’s need to earn a living and their often-stated primary goal of provision of patient care. The non-medical commentator pointed out that most GP’s charge fees for services rendered and suggested (having recently completed an environmental medicine course and the knowledge that it can take upwards of half an hour to take a comprehensive patient history) that GP’s spend insufficient time dealing with work injury matters and that it is ‘simply a matter of finances’. Further Richard suggested that when a compensation payer makes an arrangement with a care provider an important relationship develops with power by the payer over the payee and this issue is magnified when the care provider is an employee of the payer. The suggested solution was that all GP’s be salaried by the government, but suggested that doctors would strongly object.

In response to another comment by Rosemary McKenzie-Ferguson who runs a support service for injured workers in Adelaide, Richard suggested that to raise concerns about the matters referred to in the article was ’tilting at windmills’ presumably referring to the insurers (or perhaps the whole system) as Don Quixote’s windmills i.e. an imagined issue.

When I flagged the need for a considered response to his comments, Richard suggested that I relate my response ‘as a GP’ not as an occupational physician. This is difficult for me as I have not worked in General Practice for 30 years when the current issues did not exist (or I had not experienced them), but I can make observations about modern-day general practice based on discussions with GP colleagues.

Firstly, I would say that GP’s and some Medical Specialists and people involved in supporting injured workers see a side of our compensation systems, not seen first hand by most of the other participants. Referring to my own experience, I remain surprised about the sheer numbers of people who attend my practice who appear to have been unnecessarily ‘damaged’ by the system. In a small state like Tasmania, you might think the numbers would be small, but I usually see 2 or 3 people each week for IME assessments and I would say that the majority of those have suffered some unnecessary harm from the system. In addition, amongst those patients referred by their GP’s due to complexity there is a high rate of unnecessary damage. Recently adverse events affecting patients I am treating became so common that I have implemented ‘Adverse Event Reporting’ in my practice. Since this policy was implemented on 01 March, I have completed about 6 reports of significant adverse events that have complicated recovery. Some events relate to the management of the claim and some to medical and rehabilitation management. These are not minor events, but include significant clinical setbacks causing total incapacity for work, additional need for medical or psychological input and, in one, case psychiatric hospital admission. These reports are being circulated to WorkCover to help build a picture of what is happening at the coal face.

It might be useful for other participants to spend a day (or even a week) in a medical practice or an Injured Worker’s Support Facility to understand the reality of our current compensation systems.

I think I do have some understanding of the insurer’s and employer’s perspective. I have worked in a management role with a large employer (Health & Safety Manager for Hydro Tasmania), more recently than I have worked in general practice and much more recently I have had a role as adviser to an insurer. My knowledge of general practice comes from day-to-day interaction with GP’s who refer to my practice, in addition to interaction with GP’s through my role with the AMA’s Workers Compensation Reform Committee and more recently with the RACGP.

The first point to make is that the issues about potential conflict between  the need to make a living and the goals you seek to achieve at work are common to everyone in our society. Doctors are not unique in that regard.

I was talking on the weekend to another doctor originally from the UK with an interest in medical ethics. He pointed out that the tradition of the UK medical fraternity is of independence from authority and a focus on a patient’s best interests.. A German colleague had apparently pointed out to him that it was unlikely that the UK medical fraternity would have got involved in the type of atrocities committed by doctors in Nazi Germany due to differing traditions. The ethics of Australian doctors are still probably largely based on those traditions from the UK.

Ethical Australian doctors do put patient care as their priority, but this is not to say that there are not financial imperatives that might drive the way that is undertaken. I too have reservations about some aspects of fee for service, enshrined in our systems, most notably our Medicare System which carries over into the AMA Fee schedule. The system dictates use of defined ‘item numbers’ that describe particular procedures and consultation activities, mainly those activities undertaken ‘face to face’ with a patient. This system can drive unhelpful practices. If a doctor can earn more per hour through multiple short appointments, when a single longer appointment to properly consider a complex issue would be better, then the billing system is counterproductive. If there is no item number for telephone contacts, meetings, prolonged consultations to take a proper history or other valuable activity then those activities might be neglected to the detriment of good outcomes. There might be an argument that doctors should just change an hourly rate for their services, like lawyers do. But that would introduce a whole new set of issues, for the payers I expect, and an opportunity for the very small proportion of unscrupulous doctors.

In my view, the issues of doctors doing the bidding of an insurer are not in the same league as the issues that drive doctors behaviour in a private practice. Most doctors still want to achieve the best health outcome for their patients, although the system might not support the best way to achieve those goals at present.

The suggestion that the average GP providing treatment is at risk of becoming beholden to  a workers compensation insurer is a nonsense, especially in an underwritten state like Tasmania, where there are multiple private insurers. For the average GP treating work injuries is a tiny fraction of their workload. Drivers other than relationships with insurers are far more influential. A risk might arise in a practice that develops a preferred provider arrangement to provide treatment services for a large employer, but the most significant risks arise with direct contractual or employment arrangements between doctors and those organisations that carry liability, particularly when the doctors involved only do that type of work as highlighted the CommInsure scandal.

I agree there needs to be a review of remuneration arrangements for doctors providing both treatment and IME opinions, but I doubt anyone is going to support a change to a model where all GP’s are salaried by Government.

I don’t think we are ‘Tilting at Windmills’. There is increasing evidence, becoming increasingly apparent  from ISCRR and other research, about the hazards associated with compensation systems. The windmills, or should I say the mist-shrouded giants, are real – the entrenched negative attitudes towards injured workers within the system and the short-sighted financial drivers within an insurance-based system that actually increase the costs in the long run from work-related ill-health and injury. That cost is ultimately borne by the whole community – measured in suffering, lost productivity and cost-shifting to our social security system for those who end up on the scrap-heap.

I thank Richard for his candid comments and look forward to his response.

 

 

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About Tasworkdoc

As an occupational physician in private medical practice in Hobart, Tasmania - the southernmost state of Australia, I see workers referred by their general practitioners with various types of work-related injuries and diseases. These are mostly musculoskeletal injuries, both of traumatic and gradual onset as well as various associated psychological disorders. With interaction with patients for treatment and providing advice about rehabilitation, I have the opportunity, first-hand, to observe interactions between individual patients and compensation systems. I also conduct independent medical assessments, including impairment assessments for musculoskeletal injuries and asbestos-related disease compensation. This provides another perspective of workers within compensation systems.
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16 Responses to Tilting at Windmills?

  1. jqu33431quintner says:

    Peter, for what it is worth, I have had similar serious discussions with Richard about these matters on LinkedIn. Over many decades spent closely examining insurer-procured medico-legal reports in relation to injured workers experiencing persistent pain, I can only conclude that the depth of knowledge and understanding possessed by most of those who wrote them was, at best, relatively superficial and often outdated. It used to irk me that insurers were prepared to pay for these reports at a rate that was greatly in excess of the logical and scientific value of the opinions expressed therein. In other words, many reports were not worth the paper on which they were written. The phrase “the culpability of consciously created ignorance” has been used in this context.

    • John You are quite correct – Did you see Catalyst last night? It dealt with Back pain. One of the problems with dueling doctors in a compo dispute is that both sides want to put on the best spin for their situation. This is then adjudicated by a lawyer with no or little medical knowledge. I have never understood the rationale for such a system, much preferring a panel approach.

      • Tasworkdoc says:

        Richard – absolutely agree. Medical panels make a lot of sense for the reasons you have stated.

      • jqu33431quintner says:

        Richard, as far as I am aware, the medical panel approach to decision making, at least in the Western Australia’s workers’ compensation system, has never been properly and independently assessed. Unless things have changed for the better since I retired, the method of selection of individual members of such panels has been opaque, which suggests to me that those with up-to-date knowledge in pain medicine may not be invited to take part in the decision-making process. Moreover, the decisions of medical assessment panels, even when quite bizarre, are binding upon both parties to a dispute and cannot be challenged in a Court of Law.

        Yes, I did watch Catalyst last night. I was intrigued to see the participants grappling with the “aporia” of pain. The messages that were being conveyed about mechanisms of persistent pain, and the changes taking place within the brain, must have struck fear into the hearts of those who are responsible for the operation of systems of personal injury compensation. It reinforced my oft-stated opinion that our current systems of workers’ compensation cannot cope with the expanding knowledge base in pain science and have therefore outlived their usefulness.

    • John, as I understand it, the appointment of medical panel members was made on the recommendation of the various Colleges. This is one of the reasons why so many members were a little divorced from the realities of current practice.

      • jqu33431quintner says:

        Richard, to the best of my knowledge, this was not the way it happened in Western Australia. The AMA (WA) was meant to carry out a process of “due diligence” before forwarding to the Director of WorkCover WA a list of those of its members who had put up their hands to serve on panels.

      • Tasworkdoc says:

        Thanks John The process to appoint doctors for inclusion in Medical Panels does need to be transparent. Victoria has a better system, I believe, because the panel system is not just for Workers Compensation matters, but was established to provide medical decisions for a range of jurisdictions. Perhaps the Medical Panel system in SA failed because of the same issues you highlighted in WA John, but I don’t know the specifics. Can anyone from SA comment?

  2. Tilting at windmills – not GP bashing
    Having read Peter Sharman’s latest blog, I am minded to make a roundabout response, apologising in advance for the somewhat statistical nature of the wording.

    I would also make the very strong point that I am not in the business of GP bashing but as the gatekeepers in the compensations systems, GPs must accept some responsibility for much/many of the problems which occasionally arise.

    I am neither a doctor nor a Tasmanian so please forgive me if I err in either medical or local commentaries.

    According to Finity, Tasmania’s WorkCover Scheme Actuaries 7,700 workers compensation claims will be lodged in 2014/15 of which 5,500 are above excess claims. 810 claims have or will be disputed. In other words, the Tasmanian workers compensation scheme works well for at least 90% of claimants.

    Workers compensation is a substantial part of a GP’s business. The average claim size in Tasmania for private insurers is $20,250 of which $4,942 (24.4%) is paid in medical benefits. Interestingly, the average claims size for self-insures is $14,925 of which $5,455 (36.5%) is paid in medical benefits. The average claim size for the Tasmanian State Services is $28,171 of which $8,499 (30%) is paid in medical benefits. There is an obvious correlation between monies spent on medical services and the cost of claims which private insurers do not seem to have grasped. I.e. the more you spend on medical interventions, the lower your claims costs are likely to be. The fact that over the past 5 years private insurers have all made a loss on workers compensation underwriting in Tasmania may have something to do with their grasp of the situation.

    The total Tasmanian workers compensation medical benefit spend for 20114/15 was $43 million. HIC payments to Tasmanian GPs (NRAs) in 2014/15 were $130 million i.e. not counting private consultations or over the rebate fees, up to 33% of GP payments were workers compensation related.

    The Average GP earns $121,558 in Australia, if this is also true in Tasmania, then over $40,000 of each GP’s income each year is workers compensation related. In Tasmania there were 847 GPs in 2014/15 all competing for the patient dollar. It would make good business sense for all GPs to ensure that they have a good understanding of the workers compensation system and how it operates so that they can access the workers compensation benefits’ system effectively. Yet this is not necessarily the case.

    GPs need to see about 32 patients a day to make a reasonable living (i.e. one every ¼ hour). As already noted, the time required to take a full history, establish a rapport and gain the patient’s trust, make a differential diagnosis, complete a prescription and a Certificate of Capacity is generally much more than ¼ hour.

    In the case of a work related compensable injury or disease, a GP is almost always the first point of contact with the healthcare system and as such has the ability to set expectations and be the gatekeeper of access to benefits.

    In Tasmania, the prescribed Certificate of Capacity which must be issued by an accredited medical practitioner is the instrument needed by the injured worker to begin the compensation journey. The instructions which accompany the Certificate are comprehensive and should be readily understood by all GPs and yet many if not most continually complete them incorrectly.
    Section Six of the instructions strongly encourages the GP to contact the employer. There is a growing body of evidence which shows that safe work is good for health and that work aids in recovery, this is explicitly referred to in Section 6. In 2011 the Australasian Faculty of Occupational and Environmental Medicine (of the Royal Australasian College of Physicians) released its Australian and New Zealand Consensus Statement on the Health Benefits of Work.
    At the heart of the Consensus Statement is the desire to improve the welfare of individuals, families and communities. Some of the Consensus Statement’s fundamental principles are:
    • work is generally good for health and wellbeing
    • long-term work absence, work disability and unemployment have a negative impact on health and wellbeing
    • people attempting to return to work after injury or illness face a complex situation with many variables. Good outcomes are more likely when people understand the health benefits of work, and are empowered to take responsibility for their own situation.
    Paraphrasing all of the above: your patient will do better if you send him back to work.
    How many GPs, in the best interests of their patients and in compliance with the growing body of evidence, bother to contact the employer to negotiate a RTW? Answer, not very many.

    Section Seven of the instructions to complete the Certificate deals with Capacity to Work and states “Where the worker is incapacitated for any work, that is, unable to do any work of any kind, certification should only be granted up to a maximum of 14 days.”
    I reiterate some of my comments made elsewhere, if a worker is able to get on with ADLs, drive his kids to school, do the grocery shopping with his wife then he is not unable to any work of any kind. But many GPs so certify knowing, or ought to know this to be incorrect.
    Interestingly, Section 153 of the Tasmanian Workers Compensation and Rehabilitation Act has envisaged that this mis-certification may be an ongoing problem for the scheme and provides that “An accredited medical practitioner or accredited person who provides a certificate that contains any information that to his knowledge is false or misleading in a material particular is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units.”

    Some researchers (Monash) have now recognised that GP certification practices can vary according to worker characteristics and have found that workers with MHCs are more likely to be certified as totally incapacitates than those with a physical condition. There are other risk factors which influence the GP in his/her decision to prolong time off work such as age of patient, socio economic status, weak GP/patient relationship, pressure on consultation time, limited knowledge of the workplace and the extra administration involved in the compensation system. None of these factors/influences ought to have any effect on return to work and if they be a basis for certification of unfitness for work, then they also tend to disadvantage the injured worker, the GP’s patients.

    All Australian workers compensation systems have built in drivers to encourage speedy recovery. These drivers are increases in premiums for employers which don’t encourage early return to work and weekly benefits’ step downs for workers who do not recover. GPs can be put under pressure because of the drivers and I know of many cases where a worker miraculously recovers his full fitness the week before a major step down is about to be implemented. This miraculous recovery is strong evidence of a GP’s acquiescence with his/her patient’s wishes and not of good medical practice or in the best interest of the patient. In a number of cases where the miraculous recovery has been a feature, the employer has been forced to order an independent fitness for work assessment and there are often compelling reasons why the worker cannot be brought back to work safely.

    Peter Sharman speaks of ethical Australian doctors putting patient care as their priority yet refusal to treat compensable injuries is an emerging problem. In a recent small sample study (Is clinician refusal to treat an emerging problem in injury compensation systems? Bianca Brijnath et al BMJ Open 2016) researchers found that almost all GPs had at some time refused to treat compensable injury patients. The reasons cited were administrative – “it’s more stress than what you get paid for”; and clinical – the lack of visible symptoms, the beliefs and expectations of the patient, poor clinical outcomes and strained employer-employee relations.

    Peter is quite right in his comment that there is a potential conflict between the need to make a living and the goals that we seek to achieve at work are common to all in the community; not just doctors. The point he does not touch on however, is that doctors are unique in what they do and are unique in the role that they occupy in society. A medical practitioner is only as good as his training and experience both of which are carefully monitored. A large part of his work (up to 33%) involves compensation system beneficiaries and as such all medial practitioners should be competent in those systems, the fact that they are not is an issue which must be addressed.
    Perhaps those practitioners with an absolute reluctance to treat compensable injuries should say so on their shingles, thereby avoiding misinforming potential patients and to the overall benefit of the compensation scheme generally?

    • jqu33431quintner says:

      Richard, in relation to your final paragraph, it has always concerned me that some of my colleagues have refused to see or treat patients presenting with compensable injuries. Such an absolute reluctance to do so could be seen as a serious breech of the AMA’s Code of Ethics (2006): “Refrain from denying treatment to your patient because of a judgement based on discrimination.” Is this another issue that must be addressed?

      • Tasworkdoc says:

        I agree refusal to treat is an ethical issue, but at what point can a doctor refuse to get involved to preserve their own well-being?

      • jqu33431quintner says:

        Peter, your point is well taken but do we know how many medicos decide to take their own lives because of perceived stressors resulting from the WC systems?

        In the words of Hippocrates [460? – 377? BCE): “The medical man sees terrible sights, touches unpleasant things, and the misfortunes of others bring a harvest of sorrows that are particularly his. From “Breaths”, (tr. by WHS Jones)

      • David Buchanan says:

        I couldn’t agree more John. Moreover the Althussean interpellation of those under compensation must be addressed as well? That is to say the role of the medico in reviewing for insurance companies necessarily must itself be reviewed by an independent authority. If medicos routinely project an ideology on to patients “hey you why are you still in pain?” then we need a tribunal that asks these medicos “hey you – are you being ethical?”

  3. Tasworkdoc says:

    Thanks Richard, I do not think yours is a ’roundabout’ response at all. If your interpretation of data about GP incomes from workers compensation is correct, then your arguments make some sense. You indicate that the figures suggest to you that 33% of GP income relates to compensation payments. I have serious doubts that this is anywhere near correct, probably because much of the real data about GP practice is not captured in the figures quoted. I will however seek some input from GP organisations to comment.
    ‘Refusal to treat’ is an increasingly real problem, and in some ways I think this represents ‘self-preservation’ by doctors to avoid the stress of dealing of the system. It is made easier for a doctor to make such a decision if the work is also poorly remunerated.I have discussed this issue elsewhere.
    I can knowledgeably comment about my own specialist occupational practice in relation to ‘refusal to treat’. In recent years I have been increasingly hesitant about accepting referrals from GP’s to manage patients where particular private insurers were involved. This was because those particular insurers were very difficult to deal with, with poor communication and negativity about even relatively straightforward treatment and rehabilitation proposals, The “deny, dispute, defend (DDD)” approach that is still common by some insurers takes its toll, not only the injured workers caught up in the process, but also on the practitioners trying to provide care. The “DDD” approach obviously works for those insurers as they have the reputation as being the insurers who can make a profit in workers compensation.
    I now no longer discriminate (in terms of insurer) about which cases I take on, provided they are clinically appropriate conditions, but one of the first questions I often ask a newly referred patient is who is the insurer. My heart sinks with some responses.
    I do think your interpretation of what happens in medical practice is somewhat simplistic, but I agree it is fundamental that GP’s (and all doctors managing WC injuries) pick up the phone and talk to the employer. I do this with every work-injured patient, but interestingly I have had several cases where the employer has refused to engage, whether by phone, email or formal letter. I have found the reasons for this refusal difficult to understand. Often the reason given is that they have their own medical advice and don’t seem to want to hear what a treating practitioner recommends. In one recent case, this refusal has added to the the stress and caused additional unnecessary incapacity.
    I would like to make further comments with the benefit of a “FactCheck” of the interpretation of your cost data relating to General Practice.
    If we can get the interpretation of the data right, then the solutions are easier to agree.
    I appreciate the effort you have taken to provide a comprehensive response.
    Peter Sharman

    • jqu33431quintner says:

      For the record, I wrote this article some years ago in relation to major changes being made in the WA Workers’ Compensation system.

      Welcome to the Panopticon

      What is a Panopticon?
      Eighteenth-century utilitarian philosopher Jeremy Bentham designed the Panopticon. His was a blueprint for a prison built as a cylinder, with cells radiating from the central guard station. The cells are always brightly lit, while the guard station is dark. Because prisoners can never tell whether or when they are being watched, they have no choice but to presume at every moment they are under surveillance.

      Bentham’s idea has since become a model for our culture:

      “Hence, the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power … one is totally seen, without ever seeing; in the central tower, one sees everything without ever being seen.” [Michel Foucault, Discipline and Punish: the Birth of the Prison (1975).]

      The quest for certainty in an uncertain world
      In order to ensure “certainty” of impairment assessments under the Workers’ Compensation Act, our Government has built a metaphorical Panopticon within WorkCover. The last bricks of the edifice were recently cemented in place, when over one hundred medical practitioners each paid $800 for the privilege of attending courses of indoctrination to become WorkCover “approved medical specialists” (AMS).

      The background
      In September 2003, a Government appointed Expert Medical Committee reported to the Hon Minister for Consumer and Employment Protection on “Medically Related Matters Contained Within the Government’s Workers’ Compensation Reform Package”.

      The Committee was asked, inter alia, to advise on the process for peer review of AMSA by the Worker’s Compensation and Rehabilitation Commission. Such accreditation had to be in place before the Government’s Panopticon could function:

      “The Workers’ Compensation and Rehabilitation Commission will undertake reviews of assessments made by approved medical specialists on an ad hoc (my italics) basis to ensure consistency in evaluation. This process will include peer review and feedback from assessed workers. As part of this process, approved medical specialists may be removed from the list if impairment assessments are not consistent with the Guides.”

      Performance agreements
      The Expert Medical Committee advised that AMS would be required to enter into a “performance agreement” with the Commission to provide assessments for common law and Schedule II purposes within the WA system. This peer review process “would include examination of compliance by, and discussions with the AMS.”

      To implement the accreditation system, an “Expert Medical Advisory Committee” (EMAC) is to “make recommendations which could include counselling, education, recertification and further review with the intent of maintaining competency.”

      Here comes the bottom line: “Where the AMS still does not maintain competency, the EMAC will advise the Commission of this fact and recommend removal or suspension from the list, the power for which is to be solely vested in the Commission.”

      The power of the Panopticon
      The poet Antonio Machado wrote: “The eye you see isn’t an eye because you see it; it’s an eye because it sees you.” Those who sign a performance agreement with WorkCover will never know whose eye or eyes are upon them.

      Countless injured workers have become aware of the Panopticon in their dealings with insurance companies. Medical practitioners who act as AMSs will soon experience what a powerful bureaucratic tool it is. So long as they do exactly what they are told, they will have nothing to fear.

      The cardinal sin
      However, should they be found guilty of exercising their free will as doctors when reducing the disability of their fellow human beings to a percentage impairment figure (using the Charts and Tables of the US-based Guides), they will undergo a bit of “counselling” or “education” etc.

      No doubt, those who are recalcitrant will be struck off WorkCover’s register and thereby be deprived of a lucrative income. To whom or what can they appeal?

      For Bentham’s “prisoners” substitute “approved medical specialists” (AMS) and there you have it – WorkCover’s Panopticon.

      John Quintner

  4. Wade Kajewski says:

    I have found this to be a very interesting and riveting discussion. It just goes to highlight the complexities at play in every workers compensation jurisdiction. I can’t help but wonder if the same complexities exist in other insurance lines, e.g. Income Protection, CTP, Public Liability.

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