Tendentious – What Does that Mean?


@Bafflegab1 on Twitter describes himself:

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

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

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

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

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

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

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

According to the Cambridge Dictionary this means:

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

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

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

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

Are there any parallels in Australia?

Here is a link to the judgement for those interested:


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


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

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

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

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

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

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

Worker Assist’s website lists the following services:

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

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

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

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

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

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

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

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

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

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

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

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

I look forward to comments.

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THE GREAT DIVIDE – a sorry tale of lost teamwork!


The Great Divide!


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

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

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


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

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

The two sides of the fence!

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

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

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

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

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

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

Plaintiff and Defendant Doctors?

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

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

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

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

Adversarialism as a concept

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


Adversarialism in Workers Compensation

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

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



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AFOEM President Peter Connaughton on improving workers compensation claims processes


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

Here is a link to the statement:

Opinion Piece

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

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

Through the Looking Glass – A Call for Greater Transparency

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Comments from Tasmanian Occupational Therapist and WRP Patrick Man

Patrick has kindly provided the comments below on four earlier blog articles I have published:

A Day at the Beach

Barry Gilbert on IME’s

The Law Trumps Health – or so it seems!

What’s It All About, Dr Alfie?





The example of fraud provided by David Cherry is certainly an interesting one that I haven’t encountered before.

Thanks Patrick, I know you will have seen the whole spectrum of issues given the length of time you have been involved in workplace rehabilitation in Tasmania.

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Through the Looking Glass – A Call for Greater Transparency


At first sight, the Victorian Ombudsman Report, ‘An Investigation into the management of complex workers compensation claims and WorkSafe oversight’  seems like a grenade dropped into the status quo of workers compensation in Australia!

The report prepared by the Ombudsman, Deborah Glass OBE clarifies however that the problems identified do not relate to the entire Victorian compensation system:

‘However my investigation did not extend to the entire WorkSafe claims management system and the evidence of this investigation does not indicate that it is broken. On the contrary, as WorkSafe points out, 80% of claims are finalised within 13 weeks of injury, and its last annual survey of injured workers recorded satisfaction of over 85%’

The conclusions reached by an organisation not primarily concerned with insurance or compensation issues that peeks into the world of workers’ compensation is however, quite instructive.

The 170 page report highlights issues in the management of claims by WorkSafe Agents, the private insurance companies that administer compensation benefits, and the oversight provided by WorkSafe Victoria. The emphasis is on the 20% of claims that are considered complex that make up 90% of the scheme’s liabilities.

Of particular interest is the focus on how financial incentives drive claims agent behaviour and the negative impact of some of those behaviours on the health and well-being of the injured workers that the scheme is supposed to serve.

The Report’s Executive Summary includes the following statements:

‘But evidence of unreasonable decision-making strongly suggests that in disputed and complex matters the financial measures are encouraging a focus on terminating and rejecting claims to achieve the financial rewards’


‘There is also evidence that four of the five agents manipulated, or that staff contemplated manipulating, claims in order to achieve the financial rewards or avoid penalties’

Given the focus of this blog and previous commentary on issues relating to IME assessments, the Ombudsman’s comments about WorkSafe’s oversight of the IME System is also worthwhile reading.

The report is positive about WorkSafe’s initiatives stating:

‘Worksafe has gradually improved and strengthened its management of the IME system, but there is scope for further improvement, including:

  • targeting its quality assurance process to those IME’s subject to a high number of complaints
  • systematically reviewing agent claims decisions where a deficient IME report is identified, to examine whether the agent incorrectly disentitled a worker

The report also makes the following suggestion:

‘Providing workers with a choice of IME and requiring the sharing of IME reports with treating health practitioners could have made a significant difference to many of the complaints to my office’

The Ombudsman had access to email trails which revealed thinking by WorkSafe Agents about use of IME opinions and choice of IME’s to achieve particular outcomes. The de-identified email below is reproduced in the report:


The Report states (P 49):

‘In some cases, the evidence suggested that agents’ choice of IME’s may have been motivated by the opportunity to obtain an opinion from an IME who was considered to hold particular views’

The cost data about spending on IME opinions is also of interest suggesting that interdependent relationships develop between some IME’s and WorkSafe Agents.


Highlighting these relationships is reminiscent of the expose of similar relationships between ACC in New Zealand and IME’s who operate in that system:

The Accident Compensation Conciliation Service (ACCS) also expressed concern in relation to matters that go to conciliation:

The agents rely ‘on a small pool of heavily used IME’s, many of whom are largely removed from current clinical practice’

The report highlights the financially orientated workplace culture of the WorkSafe Agents with rewards and prizes for staff who achieved the most terminations. There was evidence that Agent’s behaviour is strongly influenced by the substantial financial rewards and penalties paid by WorkSafe to the detriment of the individual claimants, their health and the stated objectives of the scheme.

The email below about prizes offered is a sad reflection of an Agent’s workplace culture:


The report includes references to information provided by professionals and industry groups. Notably the Australian Medical Association stated:

‘Suffering an injury is difficult for anyone. This hurt is often exacerbated by rejection and suspension of claims for medical and like expenses. These decisions by agents are often overturned at Medical Panels or during conciliation. Both processes lead to a delay in return to work and health. These rejections, even if subsequently rectified, can seriously damage injured workers’ recovery’

For me, the most important conclusion in the report is this:

‘WorkSafe’s oversight needs to directly target the management of complex, disputed claims to ensure that there is a safety net for the most vulnerable’


The issues raised in the Ombudsman’s Report are nothing new, but when highlighted by a credible organisation and its recommendations for improvements are accepted by WorkSafe Victoria, the concerns cannot be ignored.

The findings have relevance, I am sure, for all workers compensation jurisdictions and perhaps more widely for other types of insurance where an individual’s health care is involved.

The Main Stream Media have taken an interest recently in several matters relevant to management of claims related to injury and ill-health.

There was the CommInsure Scandal, where claimants of Life, Income Protection and Disability Insurance were receiving poor treatment at the hands of a major financial organisation. Then there was the article in the Conversation about use of covert surveillance by MetLife on Police Force claimants with PTSD in New South Wales and now the Victorian Ombudsman’s Report which raises issues about management of claims by yet another group of financial organisations, the WorkCover Claims Agents in Victoria – Allianz, CGU, Gallagher Bassett, QBE, and Xchanging.

It does raise the question about the logic of having financial organisations in control of people’s health, whether in the context of workers’ compensation, motor accident injury insurance or with life, income protection and disability schemes.

Can any socially just system operate satisfactorily where there are direct financial benefits to the organisation from denying or delaying treatment or where funding for treatment is contingent on savings from a reduction in income support payments? At the very least there should be transparency about the financial incentives that operate within such schemes.


It is interesting to compare the issues highlighted in the Ombudsman’s report with those in Tasmania and the measures in Tasmania already in place to address those issues.

Many of the issues flagged in the Ombudsman’s Report have been raised in Tasmania by the Australian Medical Association locally.

In theory at least, WorkSafe in Tasmania could be considered to be in a better position to be the independent umpire in the arrangements to provide workers compensation coverage for workers in the state. In Victoria ultimately it is the Government that both underwrites the Scheme and acts as Regulator giving rise to potential for conflict of interest.

Tasmania’s workers compensation system is relatively under regulated compared to that in Victoria. Tasmania has an underwritten system where the private insurers not only administer claims, but also carry the liability. Potentially the financial incentives to manage claims to reduce costs is much greater than the financial incentives offered in Victoria by WorkSafe to insurers as its agent. The private insurers in Tasmania directly receive premium income from employers. Employers have greater input in claims management as a result. In the case of self-insurers and the State Service there is direct employer control of claims management.

In Tasmania there is a financial incentive by the insurers to reduce costs to both limit losses and at the same time remain competitive in the marketplace of a privately underwritten scheme. Concerns have been expressed that this competition has resulted in unrealistically low premium income to insurers to be able to fund their potential liability. The most recent WorkCover Tasmania annual report includes the following:


As self-insurers, The State Service and other major employers operate a system somewhat more akin with the Victorian System. The State Service contracts Jardine Lloyd Thompson to administer its claims, while some larger self-insurers like Woolworths utilise EML to administer their claims.

There is no publicly available information I am aware of about any financial incentives applied within the insurer organisations in Tasmania. It would be interesting to know if and how they operate in comparison to the incentives offered by WorkSafe to their agents in Victoria. I am only aware that one of the local insurers provides financial incentives to workplace rehabilitation provider organisations for RTW outcomes. Some of my medical colleagues and rehabilitation provider professional organisations have expressed concerns about the apparent lack of transparency about such financial arrangements.

On the other hand there are well-publicised legislated ‘incentives’ for injured workers to encourage desirable behaviour i.e. the step-down provisions in weekly payments to encourage return to work.

WorkSafe Tasmania is a relatively small and under-resourced organisation that has oversight of the system. It’s operations are funded by a levy on the Insurers in proportion to their market percentage. There are no incentives paid related to performance. The following is an excerpt from WorkCover Tasmania’s Annual report.


Some of the measures in place in Victoria are not in place here in Tasmania. For example, apart from accreditation of impairment assessors, there is no oversight of the IME system, although there are plans by WorkSafe to develop standards for IME assessors. There is no Quality Assurance or Audit System in place for IME assessors nor any plans to do so.

While Tasmania has a legislated system to provide for Medical Panels, these have been rarely used (although there are encouraging signs), whereas the issue in the Victorian System according to the Ombudsman’s Report is that binding Medical Panel decisions in that jurisdiction are not always followed by the WorkSafe Agents.

Tasmania however does have a legislated requirement for IME reports obtained by the insurers to be provided to the treating doctor, although there is currently some contention about whether that applies to all IME reports or only the initial report obtained from a particular specialist.

It is interesting that in Victoria ‘cherry picking’ or ‘doctor shopping’ for IME opinions is seen as inappropriate, while in Tasmania there seems to be widespread acceptance that there is nothing wrong with that approach where an insurer’s liability is at stake.

The issue of choice of IME is a vexed one. A recent LinkedIn article by Dr Doron Samuell, suggests that with choice of IME by the worker in the system, the process will eventually lead to the removal of all IME’s who provide reports favourable to the insurer.

3 Doctors, 1 Headache

He states:

‘It is axiomatic that insurers must have the opportunity to obtain their own evidence, this is fundamental to managing any claim. Claimants submit medical evidence from their treating doctor or commissioned medical reports. To defer to an approach, dictated by the politics of pleasing, will necessarily impact on the quality and reliability of the medical evidence that is available to the insurer. Poor decision-making, that is predicated on the medical evidence, either to accept a claim that has no merit, will only drive up costs and therefore premiums. When the premiums become unaffordable, will there be time to reflect on the pathway to collapse?’

While I have some sympathy for that view, surely it is not about whether reports are favourable or not to any particular party, rather are they objective, accurate and evidence-based. The challenge is to achieve that goal. A better approach than either insurer or worker choice of IME might be the regulator to choose a panel of suitable doctors with medical profession input and those doctors be randomly assigned to any particular case according to their accepted expertise.

Tasmania also has provision for provisional funding for treatment while initial disputes about liability are sorted out, but my experience is that it doesn’t always work well.

Victoria has an Accident Compensation Conciliation Service (ACCS) and support services WorkCover Assist and Union Assist in addition to its court system to resolve disputes, whereas in Tasmania there is no service that focuses on conciliation only  Worker Assist and the Workers Rehabilitation and Compensation Tribunal.



What the Victorian Ombudsman Report highlights is the risk inherent in the application of financial incentives reinforcing a financial system culture that has little or no concern for individuals or their health.

At the very least, any financial incentives should be publicly available, in the same way that the incentives to promote recovery and return to work for workers are publicised. Any incentives should be based on overall outcomes, not related to measures at an individual claim level.

The other ‘Take-Home’ message is that the focus needs to be on improving the management of the 10 or 20% of complex claims that incur the vast majority of any scheme’s liability.

WorkSafe in Victoria clearly has some work to do to rebalance priorities with the complex claims.


It would be interesting if a similar independent review were conducted in the Tasmanian jurisdiction – I suspect similar issues would be identified with complex claims









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What Gets Measured, Gets Action?


ISCRR CEO Alex Collie recently published the following article:

Counting work-related injury and illness in Australia: Do we measure up?

The following quote from the article illustrates one aspect of the problem with our data collection:

“One finding from this report is that fewer than 50% of the injuries reported in Australia in 2014 became accepted workers’ compensation claims.”

The article also highlights  the relative absence of psychological health data being collected:

“Perhaps the best example of this is that very few mental health conditions are accepted in workers’ compensation schemes, yet as many as 20% of working age adults will have experienced a mental health condition in the past twelve months.”

Alex cites initiatives in the United States as a potential model to follow:

Developing a Smarter National Surveillance System for Occupational Safety and Health in the 21st Century

Alex’s article succinctly highlights the deficiencies in our data collection.

This blog is about the negative health impact of our compensation systems on individuals injured in the workplace. Consistent with this article, I am aware that in my local jurisdiction there are significant barriers to entry into the system. Indeed many well-intentioned doctors advise their patients against claiming because of the risks inherent in the system. Many claimants whose injuries become complex have their claims disputed and a significant proportion lose their entitlements. Almost all psychological claims seem to be disputed.

Measuring the health outcomes using workers compensation data is a flawed approach, particularly when many of the worst outcome cases are managed outside the system. We do need better methods to capture the data about health outcomes for those injured at work.

Our systems might work well for those with simple, visible and straightforward physical injuries, but probably do not for a significant proportion of injured workers, particularly those with complex secondary complications or pre-existing vulnerabilities.

As workers are encouraged to work into their senior years this will become even more important.

I commend Alex on his initiatives in more meaningful data collection.

The real data has the potential to break through the complacency amongst many that think our systems are working well.

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What’s It All About, Dr Alfie?


Yesterday was not an unusual day for me in many respects, but comments on LinkedIn by a doctor that it was ‘very disturbing’ that unions in Tasmania might pursue a change that meant that PTSD was assumed as caused by work in some high risk occupations, lead me to reflect on some fundamentals about the role of doctors in our compensation systems and about the raison d’être for the schemes themselves. Not that I necessarily disagree that work causation should not be assumed without evidence, but more fundamentally what is a doctor’s role within our compensation systems and what is the objective of compensation schemes.

I have previously provided some commentary on related issues, the CommInsure scandal –Another Elephant? – Lessons from the Comminsure Scandal

Day to Day Experiences

In addition to snippets from Social Media, my interactions with patients and other health professionals at work and at professional gatherings provide examples of some of the roles taken by doctors in compensation systems.

I saw a patient to provide a report to their lawyer, mainly about the extent of impairment. The patient is well-known to the practice and has progressive CRPS as a complication of a work-related limb injury. The condition had progressed to affect the contralateral limb. The claim is approaching settlement. I am providing an opinion about impairment. The insurer have sought opinions from another doctor who, at the last assessment, tried to justify the use of an impairment methodology that lead to the lowest impairment rating, barely accepting that there was a significant medical disorder, let alone a progressive debilitating disorder preventing any return to work or quality of life. Since my previous assessment about a year earlier, the condition has progressed with X-ray evidence of osteoporosis, gross swelling, skin changes and other classic features of this horrible condition, yet my expectation, if the other doctor is true to form, it will again be argued whether the condition is real or an assessment of the condition conducted in a way favourable to the insurer’s liability. I hope my predictions are proven wrong, but experience tells me otherwise. Is this the role of a doctor in our compensation system?

I saw another young patient under my care who has suffered musculoskeletal injury at work. The patient had become suicidally depressed with a near-successful suicide attempt as a result of the incapacity and effects on their career prospects. There is no previous psychological history. I am reluctant to add the psychological diagnosis to the certificate because I know it will lead to a dispute and complicate management. A proposal for limited ‘without prejudice’ funding to assist with psychological treatment (already psychological treatment is mainly funded by the public purse) has already been rejected. What is my role as the doctor coordinating treatment here? I suspect a no-win situation for the patient whatever I do about trying to expedite appropriate holistic management addressing physical and psychological factors, but will do my best.

Another patient, also well-known to me, contacted me yesterday concerned about a letter from the insurer advising about a dispute based on an IME assessment. Despite a legal requirement that the insurer provide the treating doctor with the IME report, I hadn’t received a copy yet to be able to talk through the opinion with the patient. More unnecessary stress for the patient. I will talk that through with them.

I did have some more satisfying experiences yesterday. A worker with back pain referred by their employer attended for advice about management. The employer isn’t concerned about the cause, they just want to get their employee better. I was able to help. I also reviewed another patient where a clear occupational disease diagnosis had been established, based on objective investigations. There are clear workplace implications – a change of job role is necessary. So far this has been accepted by the worker and hasn’t been challenged by his employer (indeed they seemed pleased to have an answer about the cause) and I remain hopeful that the insurer will accept the situation and not try some strategy to escape their role is supporting appropriate management. This is the role of a doctor working within a compensation system.

Another recent experience is my attendance at a conference about the health effects of compensation systems. I have just come back from the Australasian Compensation Health Research Forum conference – ACHRF 2016  in Melbourne. The conference was co-sponsored by the leading Melbourne-based research organisation in this field in Australia – The Institute for Safety, Compensation and Recovery Research (ISCRR) and the New Zealand Accident Compensation Corporation (ACC). I commend the conference organisers and the many insurer and compensation authority, researcher and health professional delegates who attended to learn about the state of knowledge in this relatively new area of research. I was disappointed that I couldn’t see anyone amongst the nearly 200 delegates from Tasmania’s Private Insurers or WorkCover/WorkSafe Tasmania. They didn’t get to see the presentation I made on behalf of AMA Tasmania about a unique initiative, driven by concerned doctors putting forward ideas to improve health outcomes in Tasmania’s Workers Compensation System. Most initiatives are driven by insurers trying to improve scheme outcomes or researchers and academics. The AMA proposal involves an alternative clinical pathway for workers assessed early on in their claims by GP’s as having a potential poor prognosis. See the earlier article for details – Towards Simplicity – Complex Case Management by Doctors. The AMA ideas did achieve some recognition though, with the conference organising committee’s award for the best Poster Presentation at the conference. Is involvement in system level change an appropriate role for doctors? I think so – otherwise I declare I am a hypocrite.

Dr Jason Thompson (@Simulated_Jase),  a well-known researcher at ISCRR tweeted today about the release of a study – Differences in perceived fairness and health outcomes in two injury compensation systems: a comparative study. This study provides evidence that differing ‘perceptions of fairness’ between compensation systems can affect outcomes. I doubt this study will immediately or directly affect what I do in my day-to-day medical practice, but it is an example of the growing evidence base about the factors that can affect outcomes for claimants in compensation systems, relevant to the design of compensation systems.

Over the last few days there has been publicity about PTSD in Ambulance Officers and Firefighters with a recent Four Corners Programme Insult to Injury. Concern about this issue has now extended to the south of the country with Tasmanian Ambulance Officers and Firefighters asking for system change to avoid the damaging effects of having to prove PTSD as highlighted earlier in this article.

The Conversation published an article by Petra Skeffington 2 days ago about PTSD – One in five police officers are at risk of PTSD – here’s how we need to respond. The following notable statement appears in this article:

“However, an ethical compensation system must deliver timely and warranted assessment and outcomes for claims in a way that protects those who are distressed and psychologically unwell.”

My opening paragraph also refers to this issue and the concern about a doctor seemingly having the principal motive of raising concern about a measure designed to improve health, without any apparent examination of the evidence from a health perspective. One could be forgiven for concluding that the motive was to protect the financial viability of the insurer rather than advancing health.

In another blog article I referred to Dr Barry Gilbert’s view of the role of an IME assessor – Barry Gilbert on IME’s.

It is worthwhile revisiting one of his most important points:

it is essential doctors always use their skills and authority to always act in the patient’s best interests”

I agree with that sentiment.

Why Do We Have Compensation Systems?

Workers Compensation Schemes are intended to serve the interests of those injured at work and are not primarily concerned with providing a profitable line of business for a financial organisation. Of course there is a need for the system to be affordable to the payers, the businesses and organisations that pay premiums and ultimately the community. It is worthwhile however remembering that while most workers don’t have choice about whether they end up within a compensation system, private insurers do have a choice about whether to participate in the offer of insurance along with the expertise in risk management to calculate a fair premium for that role.

Insurers have a choice to participate in compensation systems – workers don’t!

Doctors should be professionals whose overriding responsibility is to advocate for optimum health outcomes, no matter their role or who pays them. This is so whether doctors are working at individual case level or providing strategic or policy advice at a system level.

Doctors can provide advice to whoever seeks it, but it is not their role to bend the medical truth for the financial benefit of organisations that choose to operate in the compensation space. It is their role to be fully informed about health issues, including the impact of the various processes involved in assessment on the individuals involved. Indiscriminate surveillance is a good example of a potentially harmful practice, as raised by the recent Four Corners Programme.

See my earlier blog article for my own perspective on this issue:

Surveillance – Sharp Focus or Blunt Instrument?

Doctors should also be concerned about processes that lead unfairly to avoidance of liability by any third-party payer. This is not only because that might disadvantage the individual’s access to treatment and rehabilitation, but because cost-shifting of health care costs from  insurers and employers to the public purse has the potential to overload our already overstretched Public Health System and remove the incentive for employers to address controllable health risks.

In conclusion, Doctors who work within compensation systems need to be cognizant of the growing evidence about the health effects of compensation systems and to always act in the interests of health outcomes whatever their role.


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The Law Trumps Health! – or so it seems

Law trumps health1

In my blog article at the start of 2016, I outlined a plan for a series of articles about  various ‘insults’ to the achievement of positive health outcomes in compensation systems, in accordance with the theme of this blog.

I also realised that there is also a need to showcase examples of “Best Practice” and I have plans to write about the ‘blessing’ of a positive relationship between an injured worker and their employer, so important to achieving good health outcomes. This article touches on this issue, but it is a subject unto itself.

I did manage to post an article about ‘complexity’ in compensation systems, but at this stage I haven’t made any real progress on writing about the other ‘insults’ – too much else is going on and not enough time!

Distractions This Year to Date

This year there have been various issues I have written about:

There are also the continuing challenges posed by chronic pain, degenerative and computer-related disorders for our compensation systems.

In this field there is so much happening that is worth sharing. There are my experiences at the ‘Coal-face’ of occupational medicine interacting with injured workers, employers, insurers and other health practitioners, political experiences in the processes to try and make changes to the system from within and developments in understanding of the ‘science’ of this challenging area of medical practice.

I am particularly looking forward to attending ACHRF 2016 in early August. A likely source of inspiration for a further article from me.

Insights from the Tasmanian State Service

A significant proportion of patients under care at my own practice are employees of the Tasmanian State Service. Several recent cases have illustrated the difficulties posed for workers with complicated or prolonged claims due to the structural arrangements in place to manage cases, particularly in the smaller agencies.

While State Service claims are administered by a contracted private organisation (Currently broking firm Jardine Lloyd Thompson), the Agencies themselves make decisions about liability and overall injury management. Each Agency is apparently autonomous in that respect.

Each Agency have their own Injury Management Co-ordinators (IMC).  In the smaller agencies, the same person within the organisation has the responsibility to administer ‘care and concern’ to injured workers, while having an eye to liability and costs of the claim. I am not aware of how each IMC’s performance is formally measured by their employer, but is is apparent that there is (and must be) some focus on claims costs under this management arrangement.

With longer running claims, this conflict for the IMC becomes apparent. Usually the focus on cost containment wins out and even the most caring IMC starts to be seen by the worker as a barrier to their recovery. Unsurprisingly the IMC no longer welcomes contact from the worker and the relationship sours. With a long-term injured worker this relationship is often the only remaining contact with the Agency.

What hope is there for recovery and rehabilitation without any positivity in that relationship?

Treating Doctors – Part of the Team or Outsiders?

As a doctor, and outsider to the formal management system, trying to implement a co-ordinated treatment programme, can be frustrating. On the one hand the treating doctors are supposed to be part of the injury management team but, on the other, doctors are on the outside excluded from information held by the claims managers.

Tasmanian legislation supports transparency and information sharing. The key role of Primary Treating Medical Practitioner (PTMP)  and access by that doctor to the IME opinions obtained to manage the claim (via Section 90 requirements), is contained in the legislation.

However once there are concerns about costs of a claim and/or lack of progress or resolution, legal involvement starts. The legal ‘rules of engagement’ are quite different to those adopted by doctors in medical practice, as discussed in my earlier article.

Reflections on Medical Decision Making

This works against collaboration, information sharing and timeliness of decision making. The objective becomes a reduction or avoidance of liability and associated claims cost.

Currently some lawyers are using technical legal arguments to deny access by PTMP’s to IME reports e.g. on the basis that only an initial IME report has to be released, contrary to the intention and spirit of the legislation to support transparency.

With the State Service there is an obligation to use only state-employed lawyers with the additional restraint of limited resourcing which can add significant delay to the mix of barriers.

Interestingly, in one recent case, after making appropriate enquiries, informal reports from an internal IME adviser were released to me as PTMP, throwing light on the otherwise mysterious behaviour of the Agency in response to a medical management proposal. A small win for common sense.

Unfortunately despite the best intentions of legislators, it seems that common sense and  collaboration can fall victim to over riding demands to follow legal processes to the detriment of health outcomes for those injured at work.

The legal duty of an employer to contain claim expenses does not sit well combined with a role to provide compassion and care, as it does in some State Service IMC roles. These roles need review, combined with acceptance of the principles of transparency and engagement with treating practitioners, to achieve better outcomes.

THE LAW TRUMPS HEALTH – no matter what the guidelines say

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Barry Gilbert on IME’s

Barry Gilbert

I attended the ANZSOM weekend meeting held in Hobart last weekend. Dr Barry Gilbert, specialist public health physician and occupational medicine consultant, was one of the presenters.

I didn’t realise until I talked to Barry at the meeting that he is is now a permanent Tasmanian resident – hopefully this will help boost the depleting numbers of local occupational specialists.

Welcome Barry!

Barry’s presentation was about his take on IME assessments and I thought it was worthwhile posting his presentation so that perspectives other than my own get an airing on this site.

Barry Gilbert Presentation – The Independent Medical Examiner

My take home messages:

  1. it is essential doctors always use their skills and authority to always act in the patient’s best interests”
  2. “being an IME shouldn’t be a vocation in itself”
  3. the challenges for IME assessment that stem from developments in the understanding of the mechanisms of chronic pain
  4. the value of “Peer review audit of reports”
  5. the value of IME assessors getting together to discuss impairment assessment methodology to improve consistency

A worthwhile read!

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