This is a brief overview of this interesting paper. You can find the full document here.
Work-related mental disorders, each year on average:
The NSW workers compensation guidelines for the evaluation of permanent impairment (4th edition) 1 April 2016 has just been released. It has been re-written to conform with the Safe Work Australia template. However there is no agreement by states using the GEPIC to use the PIRS and considering the disdain with which the PIRS and AMA6 are held together with the cost of training any such change is unlikely. The changes to the PIRS are as follows:
Psychiatric and Psychological disorders
Paragraph 11.4 from the 3rd edition, on the development of the PIRS has been removed to align to the Safe Work Australia national template guideline. The numbering therefore changes from 11.4 onwards (in comparison to the 3rd edition).
Removed 3rd and 4th sentences that referenced s67 pain and suffering.
Removing the reference to s67 in this clause does not affect an exempt worker’s entitlement to claim for pain and suffering compensation. The reference to s67 in this clause was a case management tool which is now considered inappropriate in a medical guideline.
Removed the Alzheimer’s disease example. Replaced with a bi-polar disorder example.
Pre-existing impairment Minor change to second half of the paragraph for improved clarity, and to align with the wording in 1.28 in the Guidelines: Rephrased to:
The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.
Doctor’s attitudes towards WorkCover in Victoria
AMA Victoria did a survey of doctors attitudes towards issues regarding workers compensation in Victoria in December 2014 and January 2015. As expected comments were made that these patients generally demand more time, attention and effort than other patients but this is not reflected in the remuneration rates for medical practitioners. There were concerns about the way the scheme was operated in particular its adversarial nature, the complex processes that resulted in delays getting approval for appropriate treatment and mitigated against an early return to work. There were also a range of ethical issues. Just over half of the survey respondents considered reducing their participation in the scheme and almost 20% considered withdrawing fully.
Victorian branch of the AMA prepared a submission to a WorkSafe Victoria independent review of reimbursement rates for medical services
This submission noted the results of the survey and commented on particular matters including:
A Breakup of WorkSafe Expenditure
in 2013/2014 the largest cost to the scheme was compensation paid to workers for loss of earnings amounting to $624 million or 42% of total scheme costs. By contrast the medical practitioner component treatment and rehabilitation costs was estimated at $102 million, just over 30% of all treatment and rehabilitation costs and less than 7% of total scheme costs.
However in the meantime in early March 2015 the Labour government fired the Chief Executive Officer and chairperson of WorkSafe Victoria. The ostensible reason was because of the failure to identify health risks associated with the Fiskville Fire Brigade training depot. It is believed there was a strong political reason because those in charge were trying to move to a more cooperative framework and had met a good deal of opposition. Who knows what will happen with this review of reimbursement rates!
A leaked email from WorkCover, describing the last Plantagenet king as a “lazy bastard” and “just pretending to be dead” has been strenuously defended by WorkCover.
The company that carried out the Work Capability Assessment test on the deceased king, whose remains were found in a car park in 2012, controversially found him capable of working in an office, or performing light manual labour such as driving a forklift truck.
A spokesperson for WorkCover said:
“Being a withered pile of smelly old bones that have been rotting under a car park for several centuries, is not in itself a reason to sit around all day not working. We have recommended that the King be dug up immediately and placed on a back-to-work scheme, and have his benefits sanctioned for being a blood-sucking, lazy old bastard.
The Bishop of Leicester, who led the king’s re-internment ceremony has criticised the ruling, saying:
“This is absolutely disgusting. The man’s been dead since 1485, and is in no state to pack people’s shopping bags or sweep up popcorn at the Odeon. He wouldn’t even make a good security guard for a sleepy village shop. Anyway, we’ve just buried him, and we’re not digging him up again. The poor old corpse won’t know if he’s coming or going. Leave him alone,”
I have written about the ISCRR before. I think it is a stupid name as it is almost impossible to remember, it stands for the Institute for Safety, Compensation and Recovery Research. Why, oh why, did they not twist this into RRISC or something similar?
Anyway it produces a monthly newsletter which has some interesting research finding. In the latest newsletter there are two items of research that I thought were interesting.
The first article is regarding Gender Differences with Mental Disorder Claims.
WorkSafe Victoria (Australia) workers’ compensation data (254,704 claims with affliction onset 2004–2011) were analysed. Claim rates were calculated by combining compensation data with state-wide employment data.
Mental disorder claim rates were 1.9 times higher among women; physical injury claim rates were 1.4 times higher among men. Adjusting for occupational group reversed the gender difference in musculoskeletal and tendon injury claim rates, i.e., these were more common in women than men after adjusting for occupational exposure.
Men had higher rates of physical injury claims than women, but this was mostly attributable to occupational factors. Women had higher rates of mental disorder claims than men; this was not fully explained by industry or occupation. Am. J. Ind. Med. © 2015 Wiley Periodicals, Inc.
The second article was one of those articles that seem to be a total waste of time and provided a blinding glimpse of the obvious. I have summarised it for you.
Journal of Occupational Rehabilitation December 2014, Volume 24, Issue 4, pp 766-776
Mental health conditions (MHC) are an increasing reason for claiming injury compensation in Australia; however little is known about how these claims are managed by different gatekeepers to injury entitlements. This study, drawing on the views of four stakeholders—general practitioners (GPs), injured persons, employers and compensation agents, aims to describe current management of MHC claims and to identify the current barriers to return to work (RTW) for injured persons with a MHC claim and/or mental illness.
Methods Ninety-three in-depth interviews were undertaken with GPs, compensation agents, employers and injured persons. Data were collected in Melbourne, Australia.
Results MHC claims were complex to manage because of initial assessment and diagnostic difficulties related to the invisibility of the injury, conflicting medical opinions and the stigma associated with making a MHC claim. Mental illness also developed as a secondary issue in the recovery process. These factors made MHC difficult to manage and impeded timely RTW.
Conclusions It is necessary to undertake further research (e.g. guideline development) to improve current practice in order to enable those with MHC claims to make a timely RTW. Further education and training interventions (e.g. on diagnosis and management of MHC) are also needed to enable GPs, employers and compensation agents to better assess and manage MHC claims.
Don’t you hate it when researchers’ conclusion is that more research is needed!
I came across this paper recently and thought it might be of interest to you. It is a little out of date but the general information remains applicable. The last 2 tables are especially interesting with an overview of thresholds and an overview of methods.
Role of Impairment Assessment in Australian & NZ Injury Compensation Schemes
Andrew Fronsko and David Swift
ISCRR 1st Australian Compensation Health Research Forum
The Cost of Comorbidity to the Victorian TAC Scheme (Latest Research from the Institute for Safety, Compensation and Recovery Research, an independent Institute jointly funded by the TAC and the Victorian WorkCover Authority under the auspices of Monash University)
The conclusions were that comorbidity did not have a large impact on the overall injury recovery cost but certain health conditions did have a significant impact on hospital, medical and paramedical expenses. These conditions are mental disorders, diabetes, cardiovascular disease, recent surgery and (suspected) back pain. Mental health history, particularly pre-injury psychiatric attendance and GP visits in relation to mental health significantly added to the total claim cost, administrative, income, hospital and paramedical expenses especially considered over the full post-injury year.
In the process of doing some research for the training seminar on 31 May and 1 June 2014 I revisited some of the State motor accident schemes. The diversity of schemes is extraordinary.
In broad terms there are two different types of schemes, Compulsory Third Party Insurance Schemes that require fault to be determined and No Fault Schemes, however over the years hybrid schemes have developed.
The Compulsory Third-Party Schemes include:
New South Wales – (however small payment is made to those who are at fault and there is also a Lifetime Care and Support Authority for accident victims with specific injuries: spinal injury, moderate to severe brain injury, multiple amputations, major burns and blindness. This scheme is no fault.
South Australia – however recent legislation has partially converted this into a no fault scheme so this is a real hybrid. There is also a Lifetime Support Scheme. The LSS, likely New South Wales Lifetime Care and Support Scheme will include people who suffer very serious spinal or brain injury, amputations, burns or blindness, regardless of who was at fault for the accident. The care will be provided from the time of the accident.
No Fault Schemes include:
Tasmania This scheme is No Fault but is also a hybrid with the opportunity to make personal injury claims if fault can be shown.
Victoria – this is also a hybrid scheme that is mainly No Fault but also allows for personal injury claims when fault becomes an issue.
Fortunately, most of us only work in one jurisdiction but even then we are often unaware of the complexities. This post gives you an opportunity to look at the situation in your state and, if need be compare that with the situation elsewhere.
I have been touring Beijing, Shanghai, Nanjing, HangZhou, and HuangShen with my Chinese born wife on a 2 week tour Chinese born overseas Chinese people. We had Mandarin speaking guides, ate Chinese food for breakfast, lunch and dinner with weak Chinese beer. I have been to interesting places, seen ordinary street life with amazing contrasts of massive wealth and residual poverty. Mercedes 350sl and bicycle trucks.
I have been disconcerted by my sense of isolation, I could understand any of the tourist guide’s information, the chitchat, the humour and the camaraderie amongst the group, who were kind and tried to involve me, but .
It set me to musing about problems with translation when seeing patients from different cultures.
The tourist guides spoke about the history of places referring to literature, myth, poems and especially well known stories. My wife and others struggled to explain what has been said because so much knowledge was taken as a given. When I first wrote this post, the day after Anzac Day, it set me to musing about what Anzac Day meant to me and other Australian as a story, a history, a myth and the traditions and literature that has grown from that, so that the word Anzac has a profound depth of meaning. But not to my wife who has no idea about World War 1, the growth of the nation etc, How do I explain all that in a few words, it seemed the problems she and others had translating the tourist information was similar. It struck me how much accidents and work injuries have a similar range of meanings according to our particular culture and how difficult it is to understand those meanings in another culture. A Samoan church-going father of 3 had his right hand crushed in a machine at work. He had a useless right hand and was unable to work. I understood his sense of despair and concern for the future, what surprised me was that in his culture, a physical deformity was abhorred. He was treated with contempt by his friends and Church members, his wife was ostracized and his children taunted. This was beyond my cultural experience.
When we see a claimant with an interpreter, does the claimant understand our role? Does the claimant understand our questions when translated and the implication of the questions? We have all had the experience of a lengthy dialogue between a claimant and the interpreter that concludes with the interpreter giving a one word answer. What has transpired in that conversation?
What is the experience of being in a English-speaking world without any English endeavouring to get treatment? How does one navigate the WorkCover system or the motor accident system?
This experience has led to me asking questions of the interpreter including questions such as “Doesthis accident have any specific meaning in your culture, does the type of injury have any specific meaning, are there any cultural issues with regard to treatment, are there any cultural issues with regard to seeing a psychiatrist?” I’m sure there are many other questions I could ask but these seem to be the most pertinent.
it is always a salutary experience being on the other side of the fence..
New privacy laws: Is your practice ready and compliant?
This article was published in the March 2014 edition of vicdoc
AMA Victoria Solicitor, Melanie Earles
On 12 March 2014 the new privacy law regime brought in under the Privacy Amendment (Enhancing Privacy Protection) Act 2012 will commence. The reforms are the most significant changes to Australia’s privacy laws since the implementation of the Privacy Act 1980 (Cth) (Privacy Act).
Some of the key points health professionals must keep in mind to ensure their practice complies with the new laws are set out below.
What are the changes?
The Act will replace the existing nine Information Privacy Principles (IPPs) that apply to the public sector; the nine National Privacy Principles (NPPs) that apply to the private sector; along with 13 Australian Privacy Principles (APPs) that will apply to the public and private sector alike.
Health practitioners fall within the definition of an ‘organisation’ that handles ‘personal information’ so the APPs apply to them.
Personal information means information or an opinion – whether true or not – about an individual whose identity is apparent or can be reasonably ascertained.
In Victoria, health practitioners are also subject to the Health Records Act 2001 (Vic), which requires organisations dealing with health information to comply with the 11 Health Privacy Principles (HPPs).
The new APPs will apply in addition to the Victorian HPPs. The APPs are more similar to the existing HPPs than the federal principles they are replacing. This is good news for Victorian doctors because it means minimal changes will be required regarding the way health practitioners handle their patients’ personal information.
The most relevant (but not all) of the 13 APPs have been set out below. Health practitioners should check their current practices meet with the federal APP obligations.
APP 1 – Open and transparent management of personal information
Reasonable steps to ensure compliance includes:
• training staff about the organisation’s policies and practices
• establishing procedures to receive and respond to complaints and enquiries
• establishing procedures to identify and manage privacy risks.
APP 3 – Collection of personal and sensitive information
• Organisations must only collect sensitive information (a subset of personal information, which includes health information) with an individual’s consent, and where the collection is also reasonably necessary for one or more of the organisations’ functions or activities. There are some exceptions that apply in certain circumstances (for example, where a patient is unable to consent due to a medical emergency, or permitting the collection of family, social and medical histories).
APP 3 is much the same as existing HPP requirements. Ensuring patients sign an appropriately drafted consent form prior to collection of sensitive information sufficient to discharge this obligation.
APP 4 – Dealing with unsolicited personal information
This is a new requirement that applies to situations where organisations receive personal information they haven’t asked for. If this occurs – first, the organisation must determine whether the information could have been collected under APP 3 (for example, if they have a signed consent from the individual). If so, they must deal with the information as they would other personal information – that is, in accordance with privacy law. If not, the organisation must either destroy or de-identify the information as soon as possible, assuming it is legal and practical to do so.
APP 5 – Notification of collection
APP 6 – use and disclosure
This is much the same as the existing HPP obligation, and requires that personal information may only be used or disclosed for the primary purpose for which is was collected, or a secondary purpose directly related to the primary purpose.
Certain exceptions that apply to health information, permitting use and disclosure are:
• where there is a serious and imminent threat to the health and safety of an individual or the public
• for health and medical research if certain conditions are met
• of genetic information to lessen or prevent a serious threat to a genetic relative
• to carers for compassionate reasons.
APP 7 – Direct Marketing
Organisations must not use personal information for direct marketing unless the individual has given specific consent for this. Alternatively, direct marketing is permitted if the individual has a reasonable expectation this would occur and they can easily opt out.
APP 10 – Quality
Organisations must take reasonable steps to ensure the personal information it collects, uses or discloses is accurate, up to date, complete and relevant.
APP 11 – Security
Organisations must take reasonable steps to protect the personal information it hold from misuse, interference and loss and from unauthorised access, modification or disclosure. In a health setting, this means having computer databases password protected, storing patient files in a lockable area, and training staff about the appropriate handling of personal information.
APP 12 – Access
Organisations are required to respond to requests for access of personal information from individuals within a reasonable time. If an organisation decides not to give access, written reasons must be provided. There are certain exceptions where access is not required; for example, where it may cause harm to the individual.
APP 13 – Corrections
An organisation must take reasonable steps to ensure the personal information it holds is up to date, accurate, complete, relevant and not misleading. There is a positive obligation to correct information where it is wrong. This differs from the old requirement that necessitated an individual to establish an error before any obligation to correct arose.
What happens in the event of a breach of an APP?
Where a breach of an APP occurs, the individual concerned may lodge a complaint with the Federal Privacy Commissioner (free of charge) and the Commissioner may apply to the Federal Court or the Federal Magistrates Court for an order that the entity pay a penalty of up to $1.1 million for corporations (and up to $220, 000 for individuals).
It is not necessary for the individual to prove loss or damage as a result of the breach of confidentiality – they may obtain compensation even if they have suffered no injury or loss.
Key points to remember
Slater and Gordon had an information session on 25 February 2014 after discussion s with the TAC. The relevant sections of the act for us are the following.
13 Amendment of section 46A (accident-related impairment)
After section 46A(1E) of the Principal Act insert—”(1F) When determining the degree of impairment under this section, section 47(7) or section 47(7A), the Commission must—
(a) not include impairments resulting from injuries or causes that are unrelated to the transport accident; and
(b) in the case of a person who has an injury that existed before the transport accident that is aggravated by an injury that was the result of a transport accident—
(i) in the case of a spinal injury, use the apportionment methodology set out in Chapter 3.3f of the A.M.A Guides;
(ii) in any other case, use the subtraction methodology set out in Chapter 2 of the A.M.A Guides.”.
The Commission is not liable to pay as compensation the reasonable costs of medical services that are the provision of a document obtained for medico-legal purposes, or related to medico-legal purposes for examinations made after 1 July 2014 unless the document—
(a) is requested jointly by the Commission and the person who is injured;
(b) is provided jointly to the Commission and the person who is injured;
(c) is provided by a registered health practitioner within the meaning of the Health Practitioner Regulation National Law.
document includes but is not limited to a medical report.
The Minister Second Reading Speech Commentary on Amendment 21
Currently, the TAC funds the reasonable cost of medical reports obtained by or on behalf of a client, in relation to injuries sustained in a transport accident.
On average, clients attend 8 medical examinations over the course of their claim, of which, only 2 are commissioned by the TAC. The remaining examinations are commissioned by the client’s legal representative in support of legal claims.
To address the need for a client to attend multiple examinations and to minimise the occurrence of a client attending duplicate examinations in relation to the same specialisation, this bill will enable the TAC to reimburse medico-legal report expenses if the medico-legal report is requested jointly by the TAC and the person who is injured.
It is intended that this provision come into operation on 1 July 2014 to inform and assist medical practitioners of this new policy change.
ISSUES: Potential for TAC to veto some IMEs. We have been assured that current arrangements will continue but the future is uncertain. Solicitors requiring other reports will have to pay for the reports themselves and will only be re-imbursed if the case is successful.
Clause 26 Amendments -Common law damages claims for mental injury due to injury or death
A person who is injured as a result of a transport accident may not recover damages from a person indemnified by the Commission if—
(a) the injury is nervous shock or other mental injury; and
(b) the person was not directly involved in the accident and did not witness the transport accident; and
(c) the mental injury or nervous shock was suffered as a result of the injury or death of another person who was directly involved in the transport accident; and
(d) the transport accident was caused—
(i) in the course of the other person referred to in paragraph
(c) committing, or intending to commit suicide; or
(ii) solely or predominantly by the negligence of the other person referred to in paragraph (c).”
The bill will clarify that the injury or death of a person through suicide, an intention to commit suicide or predominately through their own negligence does not give rise to an action by another person for damages in respect of mental injury (including nervous shock) where the other person was not directly involved in or witnessed the transport accident.
ISSUES: The TAC has assured us this does not exclude first responders and will be implemented flexibly. The usual benefits will be paid, this only refers to common law claims.
the definition of serious injury, a person has a severe long-term mental or severe long-term behavioural disturbance or disorder if that person, for a continuous period of at least 3 years—
(a) has a recognised mental illness or disorder (other than abnormal illness behaviour) as a result of a transport accident; and
(b) displays symptoms and consequent disability that have not responded, or have substantially failed to respond, to known effective clinical treatments provided by a registered mental health professional who is registered under the Health Practitioner Regulation National Law to practice (other than as a student); and
(c) has severely impaired function with symptoms causing clinically significant distress and severe impairment in relationships and social and vocational functioning.”
As a community we know much more about mental illness than we did when the TAC scheme was established in 1986 . The government understands that recovering from a transport accident can be a very emotional and challenging time.
This bill introduces clauses that set out clinical criteria of what constitutes a severe long-term mental or severe long-term behavioural disturbance or disorder for the purposes of serious injury. This provision has been developed in consultation with the Department of Health, including the chief psychiatrist. The clinical criteria will encourage people who were directly exposed to a transport accident and who have suffered a recognised mental illness or disorder to seek treatment by a registered mental health professional, to improve their chances of getting their life back on track as soon as possible.
ISSUES: We have been assured that the retired, those out of the workforce and others will not be disadvantaged. It has been recognized the no-one is a ‘qualified mental health practitioner’ but the explanatory notes from the TAC state that all but GPs and social workers will be included as treaters. This begs the question of the status of GPs with mental health specialist qualifications. We have also been advised that it is recognized that symptoms will fluctuate and this will not disadvantage claimants. We will see!
Discrimination against people with psychiatric injuries in various schemes used in Australia and New Zealand.
This is going to be in the nature of a running blog as there are frequent changes leading to further discrimination.
In South Australia there is no lump sum payment for any permanent psychiatric injury in their WorkCover scheme.
In Queensland following a review significant changes were made effective from 29 October 2013.
Employment is to be ‘the major significant contributing factor’ for psychological or psychiatric claims. For physical injuries the definition remains unchanged stating ‘Employment to be ‘a major significant contributing factor’ for psychological or psychiatric claims’. Note the term ‘ the major significant contributing factor’, this is a much more stringemt test than a major significant contributing factor.
In Victoria in the WorkCover system the threshold for a permanent injury is 10% but 30% for any psychiatric injury. Similarly for a civil injury claim (Wrongs Act) claim to proceed it must exceed the threshold of 5% for a physical injury but more than 10% for a psychiatric injury and the psychiatric injury cannot be secondary to a physical injury.
In New Zealand by contrast with the system in all the Australian states a person only has cover for a mental injury (defined as a clinically significant behavioural, cognitive, or psychological dysfunction):
because of physical injuries such as death of a person, physical injuries suffered by a person including those arising from an accident, treatment, treatment for another physical injury and under certain circumstances gradual process, disease or infection or from cardiovascular or cerebral vascular event.
Crimes involving sexual assault that lead to a mental injury are compensable. Suicide is excluded suicide unless the suicide was the result of a mental injury arising from a physical injury.
I will keep adding to this as I further examples of discrimination
Individuals with traumatic brain injury experience an initial period of disorientation and inability to lay down new memories. This is known as post-traumatic amnesia (PTA). Patients are generally given very little therapy while in PTA to minimise the risk of agitation. No studies have evaluated the effectiveness of therapy to enhance independence in activities of daily living during PTA.
Funding: $410,000. Funded under the ‘Bench to Bedside’ priority of the Neurotrauma Research Program
Chief Investigator: Professor Jennie Ponsford, Monash University
Commencement date: January 2014.
Anticipated conclusion date: June 2017
To better understand the processes of assessing patients in Post Traumatic Amnesia (PTA) and to evaluate the effectiveness of therapy to enhance independence in activities of daily living provided during PTA.
Benefits of project
Current practice is to minimise therapy during PTA to avoid agitation. This project will explore whether additional therapy in this phase reduces PTA duration and the time to attain functional independence or whether current guidelines to avoid to non-essential therapy are appropriate.
Introducing daily living activities during PTA has the potential to reduce the length of stay in hospital and improve patient outcomes within three to five years.
Duration of PTA is the strongest injury-related measure of long-term functional outcome in survivors of TBI and long-term care costs. Given the importance of PTA as a prognostic indicator following TBI and current lack of understanding of PTA, in terms of both its processes and potential for benefit from therapy, the research will provide world-first invaluable evidence.
Byron Rigby has written an interesting paper on the relationship between depression/pathos and pain. The studies of pain have exploded in recent years but, frankly, I am more confused than ever. Especially with regard to chronic pain and CPRS. I have included some excerpts from Byron’s paper.
Medical practitioners and healing professionals of all persuasions are endlessly called upon to treat pain, anxiety, depression, unhappiness, distress and suffering in all their combinations and kinds. Yet the subtle relationships between these experiences are seldom considered, and have only recently been subject to serious research.
In almost all languages, the words for physical pain and mental suffering are similar, or even the same. Our expressions of distress about them, including crying, tone of voice, withdrawal and mutual sympathy are also often nearly identical. The behavioural, social and pharmaceutical measures we adopt to ameliorate these experiences are also sometimes similar.
Language reflects connections between many experiential, cognitive and affective states that are increasingly being found to be neurologically grounded. We talk about someone or some event as a “headache”. A person or event that distresses us may be referred to as a “pain in the …. (neck, gut, etc)”. We routinely refer to “wounded pride”, “a broken heart,” “hurt feelings”, “painful memories”, etc. The wistful memory of past things is called “nostalgia” (“our pain”).
Words like “pathos” and “passion” have migrated across languages with meanings varying between emotional and physical pain. Languages are replete with synaesthetic references, the commonest of which deserve to be regarded as potential leads to neurological connections.
I have been doing this work for more years than I care to remember. Recently I discovered that I have written 23,000 reports since 1996. My mind boggled (I have used that term for years and never knew what it means. According to the Merriam Webster dictionary it means: to be surprised, confused, or alarmed (esp in the phrase the mind boggles) well that seems to express what I thought. But as someone said of Vivaldi ‘he didn’t write 600 concertos, he wrote one concerto 600 times’ was I merely repeating myelf ad infinitum! But I digress. Nevertheless, I am still confronted with challenges, not least dealing with some claimants. I thought you might be interested in hearing about two recent situations, one of which turned out badly. I have de identified these as much as possible, not least because of fears of retribution from one of the claimants!
The first involved George, a middle-aged man who I had seen two years previously. He claimed to be a hard-working man with a wife and three children who was a factory worker. He had been injured in a rear end collision in 2009 that seemed relatively minor ($700 damage to his car) but that had left him with a neck and back pain to such an extent that he had been unable to work. He had had a variety of treatment with no evidence of any marked improvement. Was asked directly as to whether or not he or any members of his family had made any WorkCover, transport accident or personal injury claims and had answered “no, no and no.”
I was asked to provide a supplementary report for George and sent a bundle of report, some going back to 1990. It turns out that this “hard-working man who had been in virtually continuous employment” had had a back injury at work in 1990, was off work for eight years during which time he received WorkCover payments and then a disability support pension. He had three previous transport accident claims. His wife was not working because of a work-related back injury and was receiving WorkCover payments. His two brothers similarly had work-related back problems and were receiving WorkCover payments.
On the face of it, to say the last, there was a disparity between the information he provided and the information in the documentation. How to proceed? Do I write a supplementary report based on this documentation or do I see him again?
When there is any question about credibility you have to see the claimant. People always get things wrong, it is fascinating to interview different members of a family about the same event because you find that they all have a different version of what happened, the Rashomon effect, a term that has been used by scholars, journalists and film critics to refer to contradictory interpretations of the same events by different persons, a problem that arises in the process of uncovering truth. It is named for Akira Kurosawa‘s film Rashomon, in which a crime witnessed by four individuals is described in four mutually contradictory ways. As a barrister friend of mine told me “you can never rely on eyewitnesses”.
I reckon that in 95% of my interviews people get facts wrong, sometimes important facts that have no bearing on their claim and at other times facts that may be relevant. On a number of occasions when I have re-interviewed somebody about some missing information their response has been “well I didn’t think it was relevant”. In many cases they are right and of course we are always dealing with people who are having their privacy invaded and know that they have no confidentiality.
I do a bit of a juggling act if I recognise that people are reluctant to give me some information. I will say something like “look, tell me in general terms what this is about. If I don’t think it’s relevant I won’t write it down, but if I do think it relevant I will use a form of words that you are comfortable with.” I saw Harry, a man in his early 30s from a strict religious background, for a transport accident on behalf of his solicitor who was also his father-in-law. Harry told me that he had used recreational drugs over the years but not recently. He suddenly realised what he had said and asked “will this go in the report?” I said that it would. He panicked because he realised his father-in-law, who was strictly opposed to drug use and very close to his wife would find out about this part of his life. I told him that I would ask him about it in more detail and that if I did not think it was relevant I would not only not put it in my report but I would not have it in my written notes. He told me about some relatively minor drug use between the ages of 18 and 23. I ostentatiously tore up the sheet of paper I had been writing on having first shown to him and ripped it into small pieces for effect and shoved it in the bin. He was reassured and the interview continued. By the way, there was no mention in any of the other documentation about his drug use. If it had been mentioned I would have been obliged to make some comment about it in my report.
On another occasion I struggled with the dilemma of whether or not to record in my report that Peter, a man in his early 40s, had a mother who had died of AIDS. His mother had been infected by her partner. This was information that was closely held within the family circle. This information was also not in any of the other documentation. His mother had died some 15 years previously. I did not consider his mother’s death was relevant to his work injury and its aftermath. I recorded only that his mother had died of an infection.
What have these stories to do with my dilemma with George? The point I’m making is that other reports can appeared damning but they can also be wrong. If you assume that the information in the report you receive are accurate think again. It is astonishing how many errors are in reports, some trivial but also some important. The more accurate your report is about the small details the more credible it is to do with the important issues and your opinion!
So, I saw George again. At this point it became an anticlimax. He could not disagree about the previous work injury, his family history of work injuries, he remained evasive about whether or not he was working at the time of the accident. I asked to see his CentreLink benefit card and found that he had been granted a disability support pension in 2004. He reluctantly admitted that he had not worked since then. I always ask to see the CentreLink card because the date will often tell you when the benefits started although the benefit may be a New Start Allowance initially and later becomes a disability support pension.
In my report I made it clear that because of concerns about credibility I was not able to form an opinion about whether or not he had a diagnosable psychiatric disorder. I did not say he was a liar, a malingerer, a psychopath or that there appeared to be a family culture of rorting the system. Avoid using any of those loaded terms. It’s quite sufficient to indicate that your opinion has to be based on the accuracy of the information that you have been provided and if that proves to be incorrect you cannot form an opinion.
The second situation was with Angelo, a man I saw for his solicitor who had a WorkCover claim as a result of a road rage incident in which he claimed he had been assaulted and had been left with mental and physical injuries. I had read the documentation with an increasing sense of gloom. He came from a grossly dysfunctional family with a violent alcoholic father and an emotionally absent mother. He had been in and out of prison serving at least 10 years in all. His work record was very patchy but he had become a union organiser. At the time of the alleged injury he was working as a van driver and had become involved in an argument about a vacant parking spot. There had been some pushing and shoving and he had tripped backwards over the curb landing heavily on his back. He was claiming post traumatic stress disorder and a back injury. One thing in his favour was that he was the custodial parent to his two children.
He arrived at the interview 25 minutes late. There was a minor breakdown in communications with my office manager and I did not realise he had arrived for another five minutes. Normally when people arrived at late I make another appointment but on this occasion, because of my own stuff up I reluctantly decided to see him.
He looked like Bruce Willis with the leather jacket, shaven head, designer stubble and wraparound mirrored sunglasses. I went through my usual spiel about confidentiality et cetera. He was the sort of man who tried to physically dominate and his body language reflected that. He sat tall with an expressionless face and spoke in a monotone. I realised there was trouble when I asked him about the ages of his children. The few people who have been truly obnoxious to interview always seem to cavil when requested to provide family information but we had negotiated his parents and siblings, and indeed his ex-wife, relatively comfortably. I had asked him the birthdate of his daughter. I always ask people for the birthdate of the children because it gives me some idea of their closeness to their children and their long-term memory but also it provides me with a chronological pointer. It means I can say something like “so how old was your son when you and your wife separated?”
He told me that his elder child, a son was born on 13 April 1998 and was 14 years old. Without thinking I said “no, he must be 15 years old because he was born in 1998 and it is now 2013.” He said with menace, “he’s 14!!” I was a bit slow off the mark and said well he must have been born in 1999! He was insistent that he was born in 1998. I then realised this was a big issue for him, I have no idea why. Maybe he thought I was saying he was dumb! I just don’t know. He had another son and I remember thinking “Will I or won’t I”. I decided to go for it. “So when was your younger son born?” He told me his younger son was born in February 2002 and that he was 10 years old. I can remember hesitating, do I leave this issue because it seemed so fraught for him or do I mildly challenge him. You must remember that by this stage I was feeling a little pissed off myself. I found this guy menacing with an undercurrent of deep hostility (that I knew was nothing to do with me). Considering that I was seeing him for his solicitor he seemed, at best, very unhappy about seeing me.
In the end my need for accuracy won out and I found myself saying “wellll, he must be 11!”
Bruce II exploded in rage. He abused me, swearing and telling me he was sick of all my f…ing questions. I told him to control his behaviour or he would have to leave. He chose to leave and slammed his way out of the office. He left a final legacy, he spat on the door leading to the lift.
I must admit I was not unhappy about him going. I anticipated a very long and difficult interview. I anticipated I would have to be asking him about his convictions, his record of aggressive behaviour and so forth.
The question was then what to do to clean up the mess and not just the spit? I telephoned his solicitor immediately and explained the situation. The response was apologetic. I then wrote a report indicating all the information with which I’d been provided and stating what had happened during the interview and made very sure that I did not use any psychiatric terms in describing his behaviour (see the consequences of not doing so). I wrote that I had not seen him long enough to form an opinion. I felt surprisingly calm. I was grateful that he had not smashed anything in the office or on his way out.
In retrospect I should have approached him with more care. I should have explained that because he was 25 minutes late it was unlikely that I would be able to complete the interview and would have to organise an additional time. I should also have spelled out in detail what I would be asking him during the course of the interview. All this is in the documentation sent to him by his solicitor that had been provided by me but who knows whether or not he read it. If I knew that I had given myself extra time I may have been less pressured and have resisted pushing him. If I had been more “with it” I would have picked up his irritability and confronted it directly. I would have said “you seem irritable, can you tell me what that’s about?” He may or may not have responded but at least I would have had more control of the situation-I think.
I have heard, unofficially, that Victoria is planning to switch to AMA 5. As far as forensic psychiatrists in Victoria are concerned, in the short term it will probably make little difference as the GEPIC is likely to stay with the exception that those who are qualified to do assessments using AMA 4 chapter 4 The Nervous System will need retraining in the chapter on neurology in AMA 5. This is now chapter 13 and is entitled The Central and Peripheral Nervous System. I have summarised the sections relevant to us in AMA 4, AMA 5 and AMA 6, see link.
As in AMA 4, the most severe cerebral impairment is identified and this impairment rating becomes the impairment rating for brain dysfunction.
Table 4.2 ‘Mental Status Impairments’ is now table 13.6 and is linked to table 13.5 headed ‘Clinical Dementia Rating’. The percentages within each class remain the same but there are some minor changes in the wording. Table 4.3, ‘Emotional or Behavioural Impairments’is now table 13.8 ‘Criteria for Rating Impairment Due to Emotional or Behavioural Disorders’. The wording is identical.This is probably part of a move to rationalise the various systems of impairment assessment used in the different states, Commonwealth and territories. The organisation involved is the ‘Heads of Workers Compensation Authorities, Australia and New Zealand’ http://www.hwca.org.au/members.php#. The charter of this organisation is to promote and implement best practice in workers compensation arrangements in Australia and New Zealand in the use of policy and legislative matters, regulation and scheme administration. There may also be a link to a part of the National Disability Insurance Scheme that you may not be aware of, the National Injury Insurance Scheme. I will post more information about this as it comes to hand but, to give you some idea of what this is about I quote from the Canberra Times 28 August 2012 and the Productivity Commission report 2011. The Canberra Times article stated: With the National Disability Insurance Scheme receiving much public attention, it is easy to forget the Productivity Commission’s other recommendation to establish a National Injury Insurance Scheme. The NIIS is the forgotten little brother of the bigger, brighter and more popular NDIS, but that is no reason to ignore it…. The NIIS will provide no fault insurance coverage frustration to acquire a disability from catastrophic injury and require lifetime care and support. At an estimated cost of about 1.8 billion every year. The $22 billion a year NDIS, on the other hand, would cover people born with a disability such as autism, cerebral palsy all down syndrome or acquire a disability such as macular degeneration or hearing loss. Unlike the NDIS, which would be a national scheme funded through core government revenue, the NIIS, as proposed by the commission, would be a federal scheme funded through insurance premiums, surcharges, levies and increased municipal rates-and would exclude experience at risk rating to help prevent injury. The NIIS is more like a proper insurance scheme compared to the NDIS, which is essentially an entitlement scheme. The report from the Productivity Commission (2011) states:
I have just read the most sensible article on DSM 5 that I have yet seen. I have posted a link to the article in ‘Publications’. This is from the May 2013 issue of The Monthly and is written by Professor Nick Haslam, professor of psychology at the University of Melbourne. I was particularly struck by his response to the naysayers. He writes “many of these revisions have drawn criticism, but the fiercest challenges have addressed the new ways in which DSM 5 might pathologise normal behaviour. This charge has been led by a psychiatrist, Alan Frances, primary architect of DSM IV. His new book, Saving Normal, was published a week before DSM 5. He is an incisive psychiatric critic of the new diagnostic regime. Many psychologists have also engaged seriously with DSM 5 despite deep concerns over diagnostic inflation and the neglect of social and cultural influences…. Other critics have been entirely dismissive. The British Psychological Society’s response to DSM 5 rejects the very idea of diagnosis. Clients should be assessed for specific problems, not assigned to categories, The Socirty objects to “the medicalisation of… natural and normal responses… which do not reflect illnesses so much is normal individual variation” – appointed repeats, mantra like, 37 times, even though DSM 5 never employs the concept of “illness”.
He takes to task other critics for attributing to DSM 5 opinion is that it has not expressed.
He makes the point that “it’s not obvious why people feel the need to save normality from psychiatry more than from dermatology. It is also not clear why entirely different principle should apply when we think about physical illnesses and mental disorders: the idea that one is objective and real and the other subjective and arbitrary smacks of an old-fashioned dualism. Rheumatology, for example, like psychiatry, recognises more than 200 distinct conditions, this classification is in a state of flux. Two rheumatology researchers could have been writing about psychiatry when they recently observed that for most conditions “we do not understand their (causation), and there are no “gold standard”, unequivocal clinical and laboratory features to distinguish one disease from another or even from normality.”
He goes on to say “if DSM 5 adds to the ways in which personhood can be stripped and identity tainted, than it deserves all of its criticisms. Understood correctly, however, psychiatric diagnosis does nothing of the sort. Disorder does not define one’s identity or essence: diagnosing a person is not like identifying species. The disorder is not even an alien “thing” that a person has, like an illness. It is merely a set of very human characteristics that bring suffering and impairment. Normality is not defined by what DSM 5 leaves out.”
I urge you to read the article.
The highlights for me were Michael Linden’s talk on embitterement, Kimberly Dean’s talk on violence and mental illness, the discussions about developing a curriculum with regard to forensic psychiatry, especially in the civil area, and of course my talk on “bizarro world II“, nobody asked me what was bizarro world I, I had a ready reply – DSM5.
I was especially interested in Michael’s talk because he spoke about a group of people who seem to have been ignored both by DSM in its various iterations and by ICD 10 and 11. That is people who seem to have been coping well and for a variety of reasons experience a breakdown in their capacity for coping that may never significantly improve and who not do well with the usual treatments including psychotherapy, CBT, and medication. Michael had done impressive research and had focused on an aspect that I have seen as insignificant but I now recognise the importance of embitterment. I spoke to Michael about a book I wrote in 1989 called “Falling Apart, Living with Stress Breakdown” (7,257,841 on the list of Amazon bestsellers). Much of my clinical work has been with people in this group.
Kimberly Dean’s lecture was a delight. It was a deeply academic talk exploring large data sets and examining how different ways of looking at these datasets can produce totally different results. For example one study showed that when the confounding influence of alcohol were removed there is no difference in the level of violence between the general population and those with mental illness. Some years later exactly the same data was reanalysed with the opposite outcome!
It made me conscious, yet again, how seduced we are by numbers.
The other piece of research she spoke about was seeing what happened if intensive interventions were done with people with psychosis who were at risk of violence. The surprising thing was that it made no difference long-term. Perhaps that is a good thing for mental health services.
It was particularly interesting to have a frank and full discussion with the subcommittee developing criteria for forensic trainees. I thought they had done an impressive job, despite my previous quibbles and handled the adverse comments about the lack of any civil training effectively. In essence, the complaints were that there was insufficient emphasis on doing civil forensic work and that most of the people doing civil forensic work did not necessarily come from the criminal forensic stream and there was no training envisaged for them. These matters are being considered.
Apart from that the weather was great, the food, though expensive, was good and I spent a week travelling to a small aboriginal community at Kalkaringi, 750 km south-west of Darwin, that was a real eye-opener. A terrific indigenous community but plagued by the usual problems, lack of employment, lack of school attendance and lack of purposefulness.
DSM 5 was published in May 2013. We all need to be aware of those areas that have been changed and those that remain the same as in DSM IV TR. There is a detailed analysis of DSM5 on the website. But also see Nick Haslam’s article).
The general changes are that the multi axial system has been dropped, I believe this is a recognition that it was not useful and that it was rarely used in clinical practice although the concept it conveyed of looking at the mental disorder, personality issues, other medical issues, psychosocial issues remains a part of most clinicians’ diagnostic formulation.
The Global Assessment of Function scale has been dropped. It is interesting that the authors of AMA 6 chose to include the GAF and now that it has been removed it has even less credibility as does chapter 14 in AMA 6.
The chapter on Schizophrenia Spectrum and Other Psychotic Disorders has some minor changes with the addition that at least one of the Criterion A symptoms must be delusions, hallucinations, or disorganised speech. That DSM IV TR subtypes were eliminated. There have been changes to the conceptualisation of Bipolar 1 Disorder and Bipolar 2 Disorder as they now include both changes in mood and changes in activity or energy. The major change with regard to depressive disorders, apart from some new minor diagnoses, is the name change from dysthymia to persistent depressive disorder. There have been changes in relating bereavement and major depressive episodes.
Anxiety disorders include significant changes including separate chapters for Obsessive-Compulsive and Related Disorders and Trauma and Stressor Related Disorders. Panic disorder and agoraphobia are now regarded as discrete entities and if they occur together both diagnoses need to be made.
A number of comparatively rare new disorders have been encompassed under the concept of Obsessive-Compulsive and Related Disorders. The specifier has been modified to allow for a range between those who have good insight and those who have no insight into their behaviour.
Trauma and Stressor Related Disorders including Acute Stress Disorder and Post Traumatic Stress Disorder has had significant changes, the Criterion A requirement involving a person’s response to the trauma has been eliminated and the notion of repeated or extreme exposure to trauma such as that expressed by first responders is acknowledged. The only other major change has been to recognise negative mood and irritable behaviour and angry outbursts. Adjustment disorders have been appropriately bought into the category of stress-related disorders. The authors of DSM 5 claim that these disorders have been “reconceptualised as a mixed array of stress-response syndromes that occur after exposure to a distressing event rather than as a residual category for individuals who exhibit clinically significant distress but whose symptoms do not met the criteria for or more discrete disorder (in other words a wastebasket diagnosis). However the diagnostic criteria are identical so no real change there.
The authors have recognised that although the concept of Pain Disorder as in DSM IV TR was conceptually neat it was not based on any scientific evidence. The authors state that pain is almost always associated with psychological factors and recognise that some individuals with chronic pain have somatic symptom disorder, with predominant pain. For others an appropriate diagnosis may be psychological factors affecting other medical conditions or an adjustment disorder.
I was impressed with the DSM 5 and thought that a lot of the criticism was a great deal of nonsense. Critics appear to have picked on rare diagnoses to beat the authors with implying they are trying to medicalise normal behaviour. As a consultant psychiatrist the changes relevant to my areas seem sensible and understandable.
I was hot tubbing again on Friday. I think this is my fifth time in the hot tub. The first, a total fiasco, was at the Administrative Appeals Tribunal. There were four psychiatrists who turned up, one by telephone from another state. We were told that we would each give evidence and we would then have an opportunity to cross-examine each other. The first psychiatrist, a distinguished professor requested leave as he had more important things to do and was allowed to leave. The next, a psychiatrist from the country then gave evidence and again requested leave on the basis that she had a clinic to manage in her country town and she was also allowed to leave. Neither could be cross-examined. I was then called up and protested against the lack of opportunity to deal with the evidence of the first to psychiatrists. I gave my evidence and was then vigourously cross-examined by the interstate psychiatrist. I again protested against what seemed to me manifest unfairness in being the only one cross-examined as the interstate psychiatrist then gave his evidence but then had to go elsewhere. The chair seem to acknowledge this but nevertheless the farce continued. I was left feeling very disillusioned. The second time involved another AAT hearing. This time the other psychiatrist was a young, very knowledgeable and skilled witness who was impressive. We had an interesting dialogue discussing the issues we agreed with and the issues where we differed. It was a very satisfying experience. The tribunal seem to appreciate it. The third was a teleconference with a Sydney psychiatrist, thought to be something of a gun for hire who wanted to debate the issues over the phone. I decided to take charge of the dialogue and made it clear that we were not there to debate anything. We were try to sort out those areas where we agreed and those where we disagreed. The matter was dispatched within about half an hour, I thought quite satisfactorily. Subsequently I wrote a letter, sending a draft to the other psychiatrist who agreed with it and we jointly signed the draft and it was dispatched to the judge.
On this occasion I was given a subpoena to appear in the Sydney Supreme Court. I had a brief discussion with the barrister who gave me some gratuitous advice. He urged me not to fold under pressure, thanks a lot for that advice, I’ve been a witness before. This was a very large courtroom with a very long witness table that comfortably accommodated the three of us. Two of us had seen the claimant for his solicitor and the other had seen the claimant on two occasions for the defendant. The judge started off by asking each of us to give our opinion about the diagnosis and the reasons for that opinion. I was surprised that the psychiatrist who appeared on behalf of the defendant made it clear at the start that all forensic psychiatrist were basically guns for hire and I thought his evidence went downhill from there. All of us know each other so at the morning tea break we shared a cup of coffee and later shared lunch. Matters heated up in the afternoon when all of us were cross-examined, not least by the judge. All of us had made mistakes in our reports that were brought out during the course of the day. One of us took his mistakes on the chin and did not attempt to dissemble or argue. I thought that went well. The other did the reverse and got deeper and deeper into doodoo. He was also challenged because he had seen this man on two occasions with a 13 year interval and said he was unchanged but despite that had changed his diagnosis. He found it very difficult to deal with the challenge that evoked. I was pleased that we were able to remain friendly and there were no personalities bought into our confrontations with each other. I was left feeling satisfied that all of us had had an adequate opportunity to express our thoughts and opinions and to deal with challenges that arose face-to-face rather than in the usual vacuum one experiences as a solitary witness. The experience confirms to me that to be a good witness one has to have a number of qualities including a comprehensive, well argued report and opinion, a readiness to deal with whatever facts are presented, or assumptions. A willingness to actively defend your opinion without being an advocate for the claimant or the defendant and a professional attitude towards the inevitable disputes that occur. As always there were things for me to learn.