From time to time all of us have been required to review a claimant and prepare a further report. This often leads to a dilemma, how much to include in this report from the original report? Some assessors make no mention of the original report or their initial opinion. Others virtually reiterate their initial report.
Confounding the situation is the provision of other reports, some predating the initial report. How to deal with those?
My general view is that my report should tell a story. Accordingly I weave into my report information provided from other reports according to their chronology. I find this far more readable than having a summary of other reports provided in one section after the examiner has written about the incident, treatment and current situation. I find it frustrating to have to read backwards and forwards relating other reports to the timeframe provided by the examiner.
When I have been cross-examined, having written a report and then a review report the usual way of dealing with the review report is that I am asked to pick up the story from when I last saw that person. So why don’t I simply carry on from where I left off.
On a number of occasions I found that a review report is the only report I receive and the type of report carrying on from the last interview I mentioned above gives no background and to that extent is not informative.
Accordingly I provide a brief account of the incident and its aftermath and of any pre-existing relevant matters. I deal with the other medical reports by interweaving them into this narrative.
One note of caution. I saw a man for a WorkCover claim who was a carpenter working for his father’s construction company. His father and older brother were directors of the company. The company failed and his father and brother abandoned it. He was left to pick up the pieces. He had no training in management but felt committed to doing what he could for the subcontractors for the company, many of whom were his friends. It was in that context that he became severely anxious and depressed and ceased work 3 months later.
I saw him initially and then six more times for review. Every time I saw him for review, my focus was on what had happened since I had last seen him. I failed to go back to the events surrounding his psychological collapse. When I was cross-examined the barrister took me to my description of the events surrounding his breakdown. I was surprised to realise how scanty was my description and embarrassed to realise that the two or three sentences I had written were largely taken from a psychological report written at about that time. I had checked with him and he had agreed that what she had written was correct. Nevertheless it was clearly inadequate and my failure to ask him further about this at the six subsequent visits left me with egg on my face.
As usual, when I have stuffed up like this, I go through 24 hours of managing my wounded ego and then focus on “how do I make sure this never happens again”. So when I see somebody for review I always make sure that my description of the initial event is accurate and if any further questions are in my mind I use the occasion to clarify these.
One last point, if the event for which I’m seeing the claimant occurred only 6 to 9 months previously or if the claimant is about to have surgery or to commence psychological or psychiatric treatment or attend a pain management program then I recommend that the claimant be sent back to see me after another 6- 12 months when the situation is likely to have stabilised.
I have devised a method of refining your GEPIC scores using the severity table on page 1569 in the Victorian government Gazette dated 27 July, 2006. See how it works for you?
How to use the Severity Rating Table in the GEPIC
Each class is divided into 3 levels of severity, Low, Medium and High range
Use the Severity Rating to determine the percentage range in the median class.
Severity Rating Table in the GEPIC (p1569)
Classes
1
2
3
4
5
Low
0-1%
10-12%
25-30%
55-60%
75-80%
Medium
2-3%
14-16%
35-40%
65-70%
85-90%
High
4-5%
18-20%
45-50%
70-75%
95-100%
For example:
Intelligence Class 1 Low severity (L)
Thinking Class 2 High (H)
Perception Class 2 Medium (M)
Judgement Class 2 High (H)
Mood Class 3 Low (L)
Behaviour Class 3 Medium (M)
1L, 2H, 2M, 2H, 3L, 3M – Median Class 2
Severity ratings adjusted for Class 2, below = L above = H
1L = L, 2H = H, 2M = M, 2H = H, 3L = H, 3M = H
In order LMHHHH – median severity = H
High severity in Class 2 18-20%
WPI is 20%
Worked Example
Ray – 45 year old CEO local council
Council corruption
Whistleblower – threats made
Caught drink driving in Council car after work function
I try to look at the website of Safe Work Australia because it is full of information about nationwide issues and issues in particular states. There is a comparison of the various workers compensation schemes in the different states and a plethora of statistical information. It is well worth a look.
For example they are attempting to develop a nationwide system of impairment assessment (including the PIRS)
Permanent impairment
When someone sustains an injury it may result in a permanent impairment.
A prerequisite to determining the level of permanent impairment is the understanding that it shouldn’t be decided until the claimant has improved as much as is possible; that is when their impairment has become stable or isn’t likely to improve despite medical treatment.
In addition to the assessment principles laid out in the AMA Guides, scheme legislation also provides substantial guidance on how to determine whether or not impairment is permanent.
In 2013, we made recommendations to the Ministerial Council on nationally consistent arrangements to assess permanent impairment, which were agreed to by the majority of jurisdictions in early-2014.
As a result we are now developing a national permanent impairment guide and a system for updating it, as well as developing a training package for medical practitioners who want to become permanent impairment assessors.
Workplace bullying is repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.
It is a risk to health and safety because it may affect the mental and physical health of workers. Taking steps to prevent it from occurring and responding quickly if it does is the best way to deal with workplace bullying.
Bullying can take different forms including psychological, physical or even indirect—for example deliberately excluding someone from work-related activities. It can be obvious and it can be subtle, which means it’s not always easy to spot.
Some examples of workplace bullying include:
abusive or offensive language or comments
aggressive and intimidating behaviour
belittling or humiliating comments
practical jokes or initiation
unjustified criticism or complaints.
What is not workplace bullying
Not all behaviour that makes a worker feel upset or undervalued is workplace bullying.
Reasonable management action taken in a reasonable way is not workplace bullying. Managers are responsible for monitoring the quality and timeliness of work and providing staff with feedback on their performance. If performance issues need to be addressed, the conversation needs to be constructive and supportive, and focus on the positives as well as the negatives. It should not be humiliating or demeaning.
Unreasonable behaviour may involve unlawful discrimination or sexual harassment, which in isolation is not workplace bullying. Discrimination on the basis of a protected trait in employment may be unlawful under anti-discrimination, equal employment opportunity, workplace relations and human rights laws.
Differences of opinion and disagreements are also generally not workplace bullying. However, in some cases, conflict that is not managed may escalate to the point where it becomes workplace bullying.
Implications of workplace bullying
There are legal obligations to consider all health and safety risks in the workplace including workplace bullying.
Failure to take steps to manage the risk of workplace bullying can result in a breach of WHS laws.
Workplace bullying is best dealt with by taking steps to prevent it from happening and responding quickly if it does occur. The longer the bullying behaviour continues, the harder it becomes to repair working relationships and the greater the risk to health and safety.
Effects of bullying
Workplace bullying can seriously harm worker mental health with depression, psychological distress and emotional exhaustion common outcomes for bullied workers. These health outcomes may adversely impact the workplace with workers taking sick leave and being less productive (presenteeism), both of which damage productivity.
Managing the risk of workplace bullying
Organisations can minimise the risk of workplace bullying by taking a proactive approach to identify early, any unreasonable behaviour and situations likely to increase the risk of workplace bullying occurring.
Organisations should implement control measures to manage these risks, and monitor and review the effectiveness of these measures. This could include activities such as:
Regularly consulting with workers and health and safety representatives to find out if bullying is occurring or if there are factors likely to increase the risk of workplace bullying.
Setting the standard of workplace behaviour, for example through a code of conduct or workplace bullying policy.
Designing safe systems of work by clearly defining jobs and providing workers with the resources, information and training they need to carry out their work safely.
Implementing workplace bullying reporting and response procedures.
Developing productive and respectful workplace relationships through good management practices and effective communication.
Providing information and training on workplace bullying policies and procedures, available support and assistance, and how to prevent and respond to workplace bullying.
Prioritising measures that foster and protect the psychological health of employees.
Benefits of preventing workplace bullying
In 2016, we published a report that outlines how improving management commitment to psychological health and safety could be an innovative strategy to reduce lost productivity, as well as substantially improve the wellbeing of workers.
The total cost of depression to Australian employers due to presenteeism and absenteeism is estimated to be approximately $6.3 billion per annum.
Workers with psychological distress took four times as many sick days per month and had a 154% higher performance loss at work than those not experiencing psychological distress. This equates to an average cost of $6,309 per annum in comparison with those not experiencing psychological distress.
Relative to workers with high engagement, workers with low engagement have approximately 12% more sick days per month and an average performance loss of eight per cent, costing employers $4796 per annum.
What to do if you experience bullying
Check if your workplace has a bullying policy and reporting procedure you can follow. The policy should outline how your organisation will prevent and respond to workplace bullying.
If you feel safe and comfortable doing this, calmly tell the other person that you object to their behaviour and ask them to stop it. They may not realise the effect their behaviour is having on you or others, and your feedback may give them the opportunity to change their actions.
Seek advice from another person, for example a supervisor or manager, human resources officer or health and safety representative to help you work out if the behaviour you have been experiencing is workplace bullying, as early as possible. Your employer (or other PCBU) can’t address the problem if they don’t know about it.
Further advice
SWA is not a regulator and cannot advise you about bullying in the workplace. If you need help, please contact your state or territory work health and safety authority.
In some circumstances, an order to prevent or stop a worker being bullied can be made under the Fair Work Act 2009 by contacting the Fair Work Commission (link is external).
The Australian Human Rights Commission (link is external) investigates and resolves complaints (under federal laws) of bullying based on a person’s sex, disability, race or age. It can also investigate and resolve complaints of workplace bullying based on a person’s criminal record, trade union activity, political opinion, religion or social origin.
There are a number of services available to people who are feeling depressed, stressed or anxious as a result of bullying behaviour. They include:
Every time I use the PIRS I am reminded of why I think it is so inadequate. I saw a young man yesterday who was removing an air-conditioning compressor for a boss who was paying him cash in hand. He had to cut the power cable to the unit. His boss told him the power had been turned off-not correct. This fellow was electrocuted and had severe burns to his right hand and wrist. He had weeks in hospital with about 20 operations including debridements and skin grafts and has been left with pain, weakness and ugly scarring of his right hand. He has had nightmares, flashbacks, fear of electricity and became significantly depressed. This was exacerbated by the refusal of his boss to acknowledge that he was working for him.
So I saw him three years later. In the meantime he had developed an ice and cannabis addiction, he had been imprisoned for housebreaking and thefts, his relationship had broken down and he had attempted suicide by gassing himself in his car. He had support and had been able to stop using ice and cut back his use of alcohol and cannabis. He had attempted to return to work on three occasions but had not been able to continue with two of the jobs because of problems with his right hand and because of his fear of working near machinery and using electrical equipment. When I saw him he was working part-time for a fish wholesaler although the cold was causing more hand pain and he remained uneasy about machinery and electrical equipment but he was determined to push himself.
He had a significant post traumatic stress disorder, a substance use disorder and a chronic adjustment disorder with depressed mood. This is where I get frustrated – his PIRS rating was 5% (in his state the issues of pure mental harm and consequential mental harm do not apply)! His grooming has improved, he has been encouraged to socialise more and has been trying to do so, he is still uneasy travelling to unknown areas, he still has some difficulties with concentration but was able to do a plant operator’s certificate and was working part-time. There is nowhere in the PIRS descriptors to Take account of his continuing drug use, his mood issues and his symptoms of traumatisation. You are unable to score these important matters. The PIRS deals with proxies of mental disorders rather than mental disorders themselves. The only pleasing feature is that we are not obliged to use the sixth edition – that is so much worse!
As you may know the Victorian ombudsman has raised questions about preferential use of IMEs by claims agents. The response of WorkSafe has been to centralise the bookings for psychiatric assessments. One of the issues has been that IMEs had been required to agree to block bookings although subsequently we have been told that this is not a requirement but those who have not agreed to block bookings have not received appointments. We have heard from WorkSafe that eReports have boasted that they have bulk bookings available. WorkSafe have denied this and have claimed that the ‘corporates i.e. eReports and others only provide offices and typing. IMEs who do work for eReports have told me that this organisation organises appointments, billing, rooms if required, typing and for those reasons is very convenient. I have also heard that the corporates have block bookings and fill them using different IMEs. The issue of course is that problems identified by the ombudsman with regard to claims agents appear to have been kicked further down the track as any sensible business model for one of these corporates, the bulk of whose work is for defendants, suggest that they would prefer to use some IMEs than others.
Watch this space. This matter is by no means over.
The CPD requirements for forensic psychiatrists have some difficulties as I’m sure you are aware, in particular the new 5-hour (Section 3) ‘Practice Development requirement’.
The Victorian Forensic Faculty Committee has been told following the CME Committee meeting in June that the following activities would meet the requirement:
Peer analysis of subset (5) of reports produced, using a structured tool such as the revised Worksafe Proforma, with view to revision and repeat of process each year
Reflection, with peer(s), on one’s own evidence in court as documented in Austlii (http://www.austlii.edu.au/)
Analysis of Questionnaire data for claimant/report subject re: process of their assessment (not content/opinion)
Practice audit by peer of processes such as consent forms, privacy policies, intake process
Survey of referrers re: e.g. turnaround time and other process issues
I have been perusing Judges’ comments about my reports, interesting and salutary reading. I encourage you to do a search for your own stuff. I have been distributing a patient questionnaire
over the last month. I have placed a copy of this in Publications.
I have been reliably told that eReports were unhappy about my reference to them in a previous blog and were contemplating legal action!!
I singled out eReports because of the following letter some IMEs received from WorkSafe.
My blog was about the WorkSafe response to the ombudsman’s report and i wrote in part:
In the meantime we heard that eReports and other agents had been promised a certain number of appointments a week.
The letter from WorkSafe makes it clear that my comments were accurate and there was a quick negative response from WorkSafe.
So eReports, be fruitful and multiply off, as they say.
By the way, a colleague received notice of a cancellation of an appointment by WorkSafe the morning of the appointment
because the worker did not want to see him!
26 July 2017
Dear IME
Recent communication from eReports to RANZCP members
It has come to the attention of the Victorian WorkCover Authority (WorkSafe Victoria) that eReports Pty Ltd (eReports)
has communicated with some Royal Australian & New Zealand College of Psychiatrists (RANZCP) members about its relationship with WorkSafe Victoria.
WorkSafe Victoria considers that many of the statements made by eReports in this communication are incorrect, and wish to make the following clarifications:
1. Review of IME service model
WorkSafe Victoria is currently undertaking a holistic review of its independent medical examiner (IME) model, driven by the recommendations
made in the recent report of the Victorian Ombudsman’s investigation into the management of complex workers compensation claims and WorkSafe oversight.
The focus of the review is on improving injured worker experience. To date, WorkSafe Victoria has made no commitment to increase fees, and
will not be reviewing fees until the conclusion of the review.
2. Relationship with eReports
WorkSafe Victoria does not endorse the services of eReports. WorkSafe has made no agreement with eReports to use their online platform.
WorkSafe Victoria’s relationship is with IMEs, who may request WorkSafe make appointments with them via eReports. While eReports
facilitates appointments with individual IMEs, there is no agreement or relationship between WorkSafe Victoria and eReports.
WorkSafe Victoria does not require IMEs to engage with eReports for the purposes of providing IME services, but IMEs
are free to engage a medico-legal company if these arrangements best suit their practice.
3. Requests for dedicated referrals
In an effort to efficiently and effectively manage appointments with IMEs, WorkSafe Victoria has requested
some IME psychiatrists and psychologists commit to provide WorkSafe Victoria with a dedicated number of referrals.
This will enable WorkSafe Victoria to improve injured worker outcomes by minimising the wait time for injured workers to access an IME appointment.
4. Quality assurance
WorkSafe Victoria relies on its own systems and processes in place to identify appropriately qualified psychiatrists to provide IME services.
eReports does not provide any recognised services to WorkSafe Victoria in relation to the identification of suitably qualified or capable specialists.
eReports has no involvement or connection with WorkSafe Victoria’s IME recruitment processes, and any training programs offered by eReports are not relevant to or recognised by WorkSafe Victoria’s recruitment processes.
WorkSafe Victoria has also written directly to eReports to express our concerns that they have misrepresented the nature of their relationship with WorkSafe in this correspondence. If you have any questions or concerns in relation to this matter, please contact independent_medical_examiner@worksafe.vic.gov.au
The RANZCP Committee for Continuing Medical Education have told us that the following activities would meet the new 5-hour (Section 3) ‘Practice Development requirement’:
Peer analysis of 5 (or more) reports, using a structured tool such as the revised Worksafe Proforma, with view to revision and repeat of process each year
Reflection, with peer(s), on one’s own evidence in court as documented in Austlii (http://www.austlii.edu.au/)
Analysis of Questionnaire data for claimant/report subject re: process of their assessment (not content/opinion)
Practice audit by peer of processes such as consent forms, privacy policies, intake process
Survey of referrers re: e.g. turnaround time and other process issues
I have started some of this recently. I have a questionnaire for claimants, so far 31 people have completed it. I am refining a questionnaire for referrers and
I have been using http://www.austlii.edu.au/ to look at judge’s decisions about cases in which i have been a witness – interesting reading! It lists more than 600 but many of
those are referring to the GEPIC that I co-authored with Nigel Strauss and George Mendelson. i will find out more about this structured tool business.
There were complaints by the ombudsman that claims agents were using preferred psychiatrists, WorkSafe have endeavoured to deal with this by centralising the appointment process however anecdotally it appears that they have outsourced this to others including eReports and other such agents totally going against the concept they are espousing.
Read below to see the drama unfolding. I will keep you informed
Since my last blog in June 2017 there have been further meetings with representatives of WorkSafe and representatives of the College and the medicolegal group. They intend to centralise all appointments for psychiatrists so as to prevent the notion of preferred psychiatrists and we expressed our concerns about being locked into providing timeslots with no guarantee of payment amongst other things. We have raised a number of other issues with them including funding but they refused to deal with this and it is clear that they have their own agenda (as always).
In the meantime we heard that eReports and other agents had been promised a certain number of appointments a week. We had great concerns about this.this was accentuated by the WorkSafe draft Service Standards document, the relevant parts were as follows:
WorkSafe requires the IME to reply to any complaint received by WorkSafe and forwarded to the IME within 10 business days. The complaint must be addressed in full and the reply completed in a format acceptable for review by all parties including the injured worker. Failure to respond to the complaint in 10 business days may result in suspension of IME approval.
When IMEs are renewing their AHPRA registrations, the IME is to forward a copy of their registration including any annexures, conditions, undertakings, or reprimands to WorkSafe to ensure continuation of IME approval with WorkSafe Victoria. In addition, WorkSafe Victoria will audit the IMEs approval status periodically, along with AHPRA registration audits.
IMEs are expected to have access to email and internet services.
Appointments
IMEs must accept a reasonable number of referrals to conduct independent medical examinations. Subject to leave, as a general rule IMEs must have appointments available within 7 days of a request, or demonstrate that booked IME appointments are in place within 7 days of a request Repeated unavailability of appointments without reasonable excuse may result in suspension or revocation of IME approval.
2.2 The person to be examined must not be kept waiting for the examination for an unreasonable time. IMEs should aim to see Injured Workers within 30 minutes of the scheduled appointment time. In the event that the Injured Worker has not presented for the appointment time, it is up to the discretion of the IME as to whether the examination will go ahead.
2.3 IMEs should notify the referring case manager of any appointments that they need to cancel as soon as is practical after they become aware of the need for the cancellation, to allow the case manager to rebook the appointment with the next available IME.
2.4 IMEs should accept referrals or undertake an examination for conditions for which they are qualified and experienced to provide an expert independent opinion.
The following letter was sent to WorkSafe
We write to you on behalf of the Victorian Medicolegal Group concerning the above proposed “requirements”.
The Medicolegal Group represents the vast majority of psychiatrists engaged by WorkSafe as accredited Independent Medical Examiners. As such we have always considered ourselves to be an integral component of the Victorian WorkSafe system. Engaged by WorkSafe under the terms of the Accident Compensation Act 1985, our role has been to provide expert medical advice to assist WorkSafe in determining the outcome of claims and assisting with WorkSafe’s aim of returning injured workers to appropriate employment.
Over the years, we have demonstrated our willingness to proactively assist WorkSafe. For example, our members have conducted training sessions in report writing, provided quality assurance monitoring and even the development of the gazetted measure of impairment for Mental Disorders and training in its use.
The Medicolegal Group also facilitates monthly peer review group meetings for psychiatric IMEs, a critical element in optimising the ongoing production of high quality psychiatric reports for WorkSafe. We see no reason why this cooperation should not continue into the future and indeed is enhanced.
Our concern is with the changes to the booking systems in the proposed arrangements. We believe that it is unfair to request any contractor – let alone a medical professional – to make available blocks of hours on the possibility that these may be contracted. Where these hours are not actually booked for sessions, the Authority does not propose to compensate the practitioner. We believe that this is unduly harsh and has the potential to seriously affect the viable operation of our practices. We would point out that this system has, to an extent, been trialled with respect to stress claims and has already resulted in the realisation of these concerns. The planned roll-out of these changes to cover all bookings will only exacerbate the problems associated with this new process.
It is for this reason that members of our group have not signed the proposed agreement until we have resolved this matter.
We would point out that we have already endeavoured to resolve this matter directly with Worksafe but have been unsuccessful in receiving any meaningful response, if at all. Our concerns over this situation have been heightened due to the fact that, under the terms of the proposed agreement, it is the intention of WorkSafe to institute this new booking system by mid-August. As a consequence, on 28th June 2017, we sought urgent discussions with WorkSafe to propose an alternative booking system that we believe addresses the real needs of the Authority. Unfortunately we have received no reply.
In addition, correspondence and communications from corporate medicolegal providers, claiming to have agreements with Worksafe to undertake up to thirty psychiatric IME appointments per week, suggest that WorkSafe has sought arrangements with those providers outside the parameters of the agreement proposed to individual practitioners. We consider this a breach of good faith.
We believe that this situation could have been avoided if WorkSafe had in place a process of proper consultation with the profession to discuss changes such as these prior to their being issued. We note that we were advised by Worksafe representatives of the proposed arrangements at a face to face meeting in June, and expressed our concerns at this time. However this was not a consultation as Worksafe has proposed to roll-out the new requirements with no attempt having been made to respond to our concerns.
It is in this regard that we propose a regular process of consultation with the profession as a forum to highlight and discuss changes and improvements to the processes of our engagement and any other matters relevant to our engagement. We believe that this would restore good-faith relations between WorkSafe and our profession.
We would also point out that we write to you as a result of the failure of communication by officers of WorkSafe, who have failed to respond to our correspondence of the 28th June 2017 requesting urgent discussions to identify problems and find solutions.
Again we would stress that we believe that this is an unfortunate situation, given the history of previous cooperation between all parties concerned. We would appreciate the opportunity to address these issues to you in person at the earliest opportunity.
A small group of psychiatrist (including myself) in Victoria are negotiating with WorkSafe with regard to a number of issues including remuneration. Incidentally go to ‘Resources” to have a look at the current fee schedules around the country. This groupare also looking at issues such as suitability to become an IME. My own view is that people should have at least five years postgraduate clinical experience before they are ready to do this type of work. Some of my colleagues disagree and say that people who have done the forensic training program should be able to work as IMEs immediately. I am totally opposed to this.I’m also concerned that people do not seem to understand that we have an essentially adversarial relationship with the WorkCover authority. There have been all sorts of suggestions about accreditation, there was even one suggestion that only those who see at least one IME per month every year should have continuing accreditation. The mind boggles. I hope that a dash of sanity will creep into these discussions. My concerns are with regard to providing appropriate training for IMEs, appropriate remuneration, appropriate mechanisms for dealing with substandard reports, continuing training opportunities and a recognition of the very special nature of the work that we do.
5.14 The committee recommends that AHPRA review and amend the way it
engages with notifiers throughout the process to ensure that all notifiers are
aware of their rights and responsibilities and are informed about the progress
and status of the notification.
Recommendation 2
5.24 The committee recommends that AHPRA and the national boards develop
and publish a framework for identifying and dealing with vexatious complaints.
Recommendation 3
5.28 The committee recommends that the COAG Health Council consider
whether recourse and compensation processes should be made available to health practitioners subjected to vexatious claims.
Recommendation 4
5.34 The committee recommends that AHPRA and the national boards
institute mechanisms to ensure appropriate clinical peer advice is obtained at the earliest possible opportunity in the management of a notification.
Recommendation 5
5.39 The committee recommends that AHPRA immediately strengthen its
conflicts of interest policy for members of boards and that the Chair of the board should make active inquiries of the other decision makers about actual or potential conflicts of interest prior to consideration of a notification.
Recommendation 6
5.44 The committee recommends that AHPRA develop a transparent
independent method of determining when external advice is obtained and who provides that advice.
Recommendation 7
5.48 The committee recommends that AHPRA consider providing greater
remuneration to practitioners called upon to provide clinical peer advice.
Recommendation 8
5.56 The committee recommends that AHPRA formally induct and educate
board members on the way the regulatory powers of the board can be used to
achieve results that both manages risk to the public and educates practitioners.
Recommendation 9
5.61 The committee recommends that AHPRA conduct additional training with
staff to ensure an appropriately broad understanding of the policies it
administers and provide staff with ongoing professional development related to the undertaking of investigations.
Recommendation 10
5.67 The committee recommends that the COAG Health Council consider
amending the National Law to reflect the Psychology Board of Australia’s policy
on single expert witness psychologists acting in family law proceedings.
Recommendation 11
5.71 The committee recommends that the COAG Health Council consider
making a caution an appellable decision.
Recommendation 12
5.74 The committee recommends that the COAG Health Council consider
whether notifiers should be permitted to appeal board decisions to the relevant tribunal.
Recommendation 13
5.80 The committee recommends that AHPRA take all necessary steps to
improve the timeliness of the complaints process and calls on the Australian
Government to consider avenues for ensuring AHPRA has the necessary
additional resources to ensure this occurs.
Recommendation 14
5.81 The committee recommends that AHPRA institute a practice of providing
monthly updates to complainants and medical professionals whom are the
The most recent Worker’s compensation statistics were released by Safe Work Australia in early 2017. The three industries with the highest number of serious claims were labourers, community and personal service workers and machinery operators and drivers.
A serious claim is an accepted workers’ compensation claim for an incapacity that results in a total absence from work of one working week or more. Claims in receipt of common-law payments are also included. Claims arising from a journey to or from work or during a recess period are not compensable in all jurisdictions and are excluded.
Surprisingly there is no mention of claims for “stress” or mental injury recorded in the summary, buried within the document is the following;
Diseases led to 10 per cent of serious claims and the most common diseases were mental disorders (5.7 per cent).
A higher percentage of female employees’ serious claims arose from mental disorders (over 9 per cent for females versus just under 4 per cent for male employees).
Mental stress accounted for 5 750 claims, some 5.4% of the total number of claims. Mental stress as apercentage of total claims has been consistent for many years
Number of serious claims by nature of injury or disease, 2000–01 and 2009-10 to 2014–15p
Nature of injury or disease
2000-01
2009-10
2010-11
2011-12
2012-13
2013-14
% chg
2014-15p
Mental disorders
6 620
8 095
8 735
8 355
7 680
6 685
1%
6 130
Serious claims: median time lost (working weeks) and compensation paid by mechanism of injury or disease, 2000−01 and 2009–10 to 2013–14
Mechanism of injury or disease
2000-01
2009-10
2010-11
2011-12
2012-13
2013-14
% chg
Mental stress
11.4
15.2
16.6
16.6
16.5
16.0
40%
Mechanism of injury or disease
2000-01
2009-10
2010-11
2011-12
2012-13
2013-14
% chg
Median compensation ($)
Mental stress
$14 500
$24 200
$26 200
$26 600
$27 200
$26 400
82%
Summary of statistics
Preliminary data show that there were 107 355 serious workers’ compensation claims in 2014–15, which equates to 6.5 serious claims per million hours worked.
Between 2000–01 and 2013–14, the frequency rate of serious claims fell by 33 per cent from 9.5 serious claims per million hours worked to 6.3.
In 2014–15, the frequency rate for male employees was 7.2 serious claims per million hours worked, while the frequency rate for female employees was 5.5.
In 2014–15, the three occupations with the highest number of serious claims per million hours worked were Labourers (18.6), Community and personal serviceworkers (12.4), and Machinery operators and drivers (11.8).
In 2014–15, the three industries with the highest number of serious claims per million hours worked were Agriculture, forestry and fishing (13.7),
Construction (9.8) and Manufacturing (9.3).
In 2014-15, injury and musculoskeletal disorders led to 90 per cent of serious claims and the most common were Traumatic joint/ligament and muscle/tendon injuries (43.8 per cent). Diseases led to 10 per cent of serious claims and the most common were Mental disorders (5.7 per cent).
Muscular stress while lifting or handling objects caused 32 per cent of serious claims in 2014–15, while Falls, trips and slips led to 23 per cent of serious claims.
Between 2000–01 and 2013–14, the median time lost for a serious claim rose by 33 per cent from 4.2 working weeks to 5.6. In 2013–14, the median time lost for a serious claim was 5.4 working weeks for male employees and 6.0 working weeks for female employees.
Between 2000–01 and 2013–14, the median compensation paid for a serious claim rose by 94 per cent from $5 200 to $10 100. In 2013–14, the
median compensation paid for a serious claim was $10 900 for male employees and $8 900 for female employees. When accounting for wage inflation, however, median compensation paid for serious claims increased by 23 per cent between 2000–01 and 2013–14, directly comparable with the increase in median time lost.
In 2014–15, the bodily location most commonly affected by injuries and diseases that led to serious claims was the Back (21 per cent). Other common bodily locations were the Hand, fingers and thumb (13 per cent), Shoulder (11 per cent), and Knee (10 per cent).
The rate of serious claims per 1000 employees is highest in metropolitan areas (10.6 claims per 1000 employees)
Between 2009-10 and 2014-15, 69 per cent of serious claims in Agriculture, forestry and fishing occurred in regional areas, while 61 per cent of serious claims in Mining occurred in regional and remote areas. In the same period, 85 per cent of serious claims in Finance and insurance services occurred in metropolitan areas.
Human agencies were the most common breakdown agency for serious claims in metropolitan (13 per cent of all claims) and regional areas (13 per cent), while Outdoor environment (16 per cent of claims) and Road transport (13 per cent) where the most common breakdown agencies in remote areas.
I recently saw an article on ExpertsDirect, a blog I have not seen before. This has been incoporated in the Victorian Supreme Court Rules adopted on 1 June 2016.
As outlined in our November 2016 blog, Sweeping Changes for Federal Court Practice Notes, the Federal Court, in late 2016, issued 26 updated practice notes for use in federal litigation. The previously used Practice Note CM7 Expert Witnesses in Proceedings in the Federal Court of Australia was replaced with the considerably lengthier Expert Evidence Practice Note (GNP-EXPT) which included 2 annexures, the Harmonised Expert Witness Code of Conduct in Annexure A and the Concurrent Expert Evidence Guidelines in Annexure B.
In this blog, we consider the approach taken in the Harmonised Expert Witness Code of Conduct and the adoption of this Code by a number of states.
Content of the Harmonised Code
The Harmonised Expert Witness Code of Conduct covers issues which are commonly covered by the state based expert witness codes of conduct including:
The application of the code;
An expert witnesses’ duties to the court;
Requirements concerning the content of the report;
Protocol for when an expert changes their opinion;
Duty to comply with the court’s directions; and
Expert requirements when participating in expert witness conferences.
Adoption by the states
Currently, 4 states and territories have adopted the Harmonised Expert Witness Code of Conduct: ACT, NSW, Tasmania, and Victoria. As a result, these states
have a uniform approach to expert witness conduct when compared with the approach in the Federal Courts.
Advisory firm KordaMentha have provided the following summary of the approach taken by each state with respect to their expert witness codes of conduct[1]:
The benefits of a uniform approach to expert witness conduct are widespread.
From the perspective of the expert witness, a uniform standard of expert witness obligations
creates a greater level of consistency across jurisdictions, which will in turn reduce
the complexity for experts operating in different jurisdictions.
It will also enable experts to produce reports more efficiently, with less time spent complying with
state-specific rules and more time focusing on the content of the report.
From the perspective of legal counsel and the client, a uniform system of expert witness guidelines
reduces the need for state-specific guidance for expert witnesses,
which should reduce time spent providing guidance to expert witnesses
who give testimony in multiple jurisdictions. Less time spent by legal counsel on any one task translates to lower fees for the client
and as such, a harmonisation of expert witness codes of conduct should lead to lower fees in relation to preparing expert witnesses for trial.
Non-Adopting States
While the expert witness codes of conduct utilised in the 4 states which have not adopted the Harmonised Expert Witness Code of Conduct
are fairly similar to the harmonised code, differences do exist which add to the requirements with which expert witnesses must comply.
For example, the South Australian code of conduct includes a requirement that an expert witness report ‘identify the differences (if any)
in assumptions made and opinions expressed compared to those made and expressed by a prior expert (if any)’. Such a requirement is not present in the harmonised code of conduct.
Conclusion
The harmonisation of expert witness codes of conducts reflects an exciting step forward for both expert witnesses and
legal counsel responsible for ensuring that the witnesses are aware of the requirements to which they must adhere
in the jurisdiction in which they are testifying. A uniform approach across the nation’s jurisdictions increases efficiency and productivity
in the legal industry and is, without a doubt, a positive step forward for expert witnesses and the legal industry.
[1] Ben Mahler, Expert Matters: Only some experts in harmony, KordaMentha,
All state and territory workers compensation schemes provide coverage for employee trips if they are travelling for work purposes, though only some provide coverage for journeys to and from the workplace.
In Tasmania, South Australia, Western Australia and Victoria an employer is generally not liable for an employee if they are injured on their way to or from work. In Victoria, workers who are injured on this journey are able to apply for compensation under a separate transport accident compensation scheme.
In NSW, the situation is a little more complicated. There is no compensation payable on a journey to or from work unless there is a “real and substantial connection between the employment and accident or incident out of which the personal injury arose”.
Basically this means employers will not be liable for when an employee gets injured on the way to work, unless:
The employee was directed to pick-up work mail on the way to work;
The employee was directed to travel to a training course at a location other than their normal place of work;
The employee was travelling directly to meet a client, rather than going to the office first; or
The employee had an accident due to fatigue when travelling home after a double shift.
In the Northern Territory and the ACT, employers generally are liable for trips to and from work. However, when a worker is in their car and still on their own property they cease to be covered by the scheme.
Liability for such journeys also applies in Queensland. There are, however, a number of exemptions. For example, a worker will not receive any workers compensation for injuries if they break road or criminal laws when the accident happened and this contravention led to the accident. Also, if the injury occurs too long before the employees’ work journey (and the employee was driving in the car at the time) or in a substantial geographical deviation from the journey, then an employer will not be liable.
Journey for ‘work purposes’
If a worker injures themselves on an authorised journey for work purposes the employer may be liable. In most states and territories, the relevant legislation is very broad and can include injuries incurred on journeys during lunch breaks or other breaks. Employers may even be liable if a worker injures themselves whilst getting a work certificate or whilst training at an external training provider.
In virtually all states, an employer is not liable for the injury if it is the result of serious and wilful misconduct of the worker.
I have compiled a list of common drugs so I can quickly refer to the list to find out what particular drugs are in various medical reports rather than ploughing through MIMS. Drugs are sometimes called by their generic name but also by their brand-name and it can become confusing. In the same report I read about fluoxetine, Prozac, Lovan et cetera. I hope you find it useful
On 1 December 2016, the Senate referred the following matter to the Senate Community Affairs References Committee for inquiry and report:
The complaints mechanism administered under the Health Practitioner Regulation National Law.
The terms of reference are:
the implementation of the current complaints system under the National Law, including the role of the Australian Health Practitioner Regulation Authority (AHPRA) and the National Boards;
whether the existing regulatory framework, established by the National Law, contains adequate provision for addressing medical complaints;
the roles of AHPRA, the National Boards and professional organisations, such as the various Colleges, in addressing concerns within the medical profession with the complaints process;
the adequacy of the relationships between those bodies responsible for handling complaints;
whether amendments to the National Law, in relation to the complaints handling process, are required; and
other improvements that could assist in a fairer, quicker and more effective medical complaints process.
The focus of this inquiry is the implementation and regulation of the complaints mechanism administered under the Health Practitioners Regulation National Law. Submissions outlining details of individual cases or complaints may assist the committee in identifying broader systemic issues for investigation. However, the committee has no power to investigate, advocate for or resolve individual cases. To protect the privacy of submitters, the committee has resolved not to publish any submissions outlining individual cases
Please note: All correspondence, submissions and other evidence provided to the committee’s previous inquiry into the medical complaints process in Australia is available to the committee for this inquiry. This means that submissions accepted by the committee for its previous inquiry do not need to be re-submitted.
Submissions should be received by 24 February 2017. The reporting date is 10 May 2017.
If you are considering lodging a submission to this inquiry you should consider the guidance on preparing a submission to an inquiry available on the Senate website.
Committee Secretariat contact:
Committee Secretary
Senate Standing Committees on Community Affairs
PO Box 6100
Parliament House
Canberra ACT 2600
Practicing occupational physician, Dr Peter Sharman writes about using the evidence base to guide clinical practice and improve health outcomes in compensation systems on his website. Most of us have seen some of these sites, a considerable part of their content is doctor bashing. His latest article is about a new approach to injured workers’ support groups. The full article can be read at https://insultandinjury.org/2016/12/17/injured-worker-support-and-representation-in-tasmania-do-we-need-more/
Note the establishment of sensible groups in NSW, South Australia and Victoria.
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).
A paper published in 2014 concludes that the stresses associated with making a workers compensation claim make recovery less likely.
The authors conclude:
Many claimants experience high levels of stress from
engaging with injury compensation schemes, and this experience is positively
correlated with poor long-term recovery. Intervening early to boost resilience
among those at risk of stressful claims experiences and redesigning compensation
processes to reduce their stressfulness may improve recovery and save money.
Those of us who are a little more cynical may have come to different conclusions
such as the lack of incentive for many people to return to work and being paid
not to work is a powerful driver.
I wonder how many academics actually have much understanding of this complex system.
I may have mentioned before that in one year there was a major outbreak of mental health
in the Victorian police Force as the number of WorkCover claim halved. It was probably
because the superannuation schemes suddenly became much more generous and
more accessible and the number of superannuation claims made more than doubled during that year.
