February 15, 2020
I have edited this report for IMEs, especially IMEs. The report looks at the response of WorkSafe to the 2016 report. This report has a wider focus than IMEs but I have edited it to look at that section. I have included all the recommendations.
The report is scathing about some IME reports and the response of WorkSafe and Agents to complaints about reports. A number of recommendations were made including providing a fee for complex claims, training re aspects of opinions such as work capacity etc. However, as I have written in my draft response it fails to recommend comprehensive training for IMEs.
January 18, 2020
I have prepared a comprehensive submission to the draft report of the Productivity Commission on mental health. My concerns were about 9 main issues. Primarily the loss of focus on those with severe mental illness by the discussion about mental health as if it is a single entity, the naive comments about workers compensation, the lack of any detail about recruiting, training and paying for the extra workforce required to implement their recommendations. You can see my response here. The Productivity Commission report overview is here and volume 1 and volume 2 can also be downloaded.
January 12, 2020
Deteriorating performance of the NSW workers’ compensation scheme.
A review of the Nominal Insurer (NI) was commissioned in February 2019 to determine the reasons for deterioration in the NI performance. The final report was released in December 2019.
A report in the Australian Financial Review in September 2019 highlighted the problems.
The sustainability of the NSW workers compensation Nominal Insurer, which insures 3.6 million employees and collects over $2 billion in premiums a year, is in jeopardy according to Peter McCarthy the former workers compensation principal actuarial adviser to the State Insurance Regulatory Authority (SIRA).”I have been advising or working in personal injuries schemes like icare around Australia and overseas for nearly 35 years and I have never seen a scheme deteriorate as much in such a short time frame,” Mr McCarthy told The Australian Financial Review.
In Mr McCarthy’s view, if the scheme went into deficit, employer premiums would have to increase by between 45 and 60 per cent.
In addition to workers compensation, the $36 billion icare also insures builders and homeowners, provides treatment and care to those severely injured on NSW roads and protects over $193 billion of NSW Government assets. Workers compensation accounts for about 50 to 60 per cent of what icare does.
The company’s chief executive John Nagle rejected that the scheme was falling into disrepair.
However Mr McCarthy pointed to icare’s 2018 financial year results, which showed a blowout in the number of impaired premiums.
Impaired premiums increased by over $50 million from the 2017 to 2018 financial year, up from $35 million to $87 million. Further, as of the 2018 financial year there were $226 million in overdue premiums sitting on icare’s books, an increase from $39 million in 2015.
NSW Treasurer Dominic Perrottet said the Labor government had left the state’s workers compensation scheme facing a $4 billion deficit. “We have done the hard yards to repair their damage and provide financial stability, and icare’s board and management have been instrumental in this.”
Concerns over rising costs
Observers concerned with the health of the scheme also point to rising costs. According to a libaility valuation commissioned by icare in 2018 had a $1.3 billion surplus for the scheme. However, two years prior at June 30, 2016, a liability valuation by PwC estimated assets of $17.9 billion and liabilities of $14.6 billion, a surplus of $3.4 billion.
Medical costs for icare had risen by 40 per cent combined over the past four years. Mr Nagle said “we don’t control some medical costs as they are regulated.”
Data from the regulator showed that icare’s medical costs between the 2016 and 2018 financial years increased significantly more than those for specialised and self-insurers, and the Treasury Managed Fund.
icare’s return to work rate, which points to the speed at which injured workers get healthy and back to work, has fallen according to both SIRA data and icare data, although the degree varies. A major problem is that the definition of return to work differs between SIRA and icare.
SIRA has had concerns about whether injured workers were getting the right level of early support to assist in recovery, and whether premiums were being administered in a compliant, transparent and consistent way.
An overview of the executive summary
In 2015 NSW WorkCover was replaced by:
- State Insurance Regulatory Authority (SIRA) –a new independent regulator of NSW insurance schemes (worker compensation, home building compensation and compulsory third party). SIRA was to oversee the Notional Insurer.
- b) Insurance & Care NSW (icare) –an insurance and care service Icare is the responsible entity for the NI.
- c) SafeWork NSW –an independent workplace safety regulator.
SIRA has had limited ability to enforce guidelines and standards or direct icare.
Icare implemented an ambitious model based on principles of triage, injured worker empowerment and straight through processing in January 2018. There is now one insurance agent for all new claims (EML).
The ambition of the model was matched by the ambition of the timeframe for implementation and the control by icare over EML. This has caused substantial confusion within the market and employers in particular, have complained about the lack of involvement in return to work (RTW) plans and claims verification. The new claims model has led to a significant deterioration in the performance of the NI, through poorer return to work rates, underwriting losses, no competition and therefore, concentration of risk.
The primary driver for the decline is the implementation and operation of the new claims model implemented by icare. icare has implemented a number of improvements to improve the performance of the NI. They have not reversed the decline.
The reviewer noted that an icare Board report shows that 46% of the NI’s claims are non-compliant with the legislation, and that icare considers this non-compliance as a lower order risk. This approach to compliance seems to indicate an absence of concern with regulatory matters.
Concerns were expressed in the submissions about lack of information about premiums, including reasons for marked increases, delayed or no response to queries and a call centre dealing with initial claims contributing to further delays, lack of proactive case management, inconsistent approach and errors, as well as lost paperwork. The outcome of this approach is seen as promoting reactive case management, poor communications and a lack of accountability.
Concerns were expressed about relevant case manager experience and skill levels,as well as a lack of understanding of workers compensation legislation/operations. Inappropriate hiring, inexperience and high staff turnover were all raised as issues. Positive comments were made about the motivations and attitudes of some individual staff
High caseload volume and inadequate resourcing were mentioned as adversely effecting the operation of the scheme. These issues were often connected with other issues of claims model design, communication, delays and RTW outcomes.
The single issue raised most commonly across claims submissions related to communication. The quality, frequency and clarity of communication from the NI and its agents was consistently seen by all stakeholders as an issue to be addressed. These communication issues were viewed as leading to delays, confusion, worse outcomes and increased frustration between participants.
Submissions specifically mentioned experiencing delays in obtaining approval and delaying required or agreed treatment.
The 2019 NI RTW rate has deteriorated to 84% from 93% in 2018 and 96% in 2016.This rate measures the percentage of injured workers who report having returned to work at any time.
The current NI RTW rate measured by a survey has reduced to 73% 83% in the 2018 NI RTWSurvey.
Many complained about the shift to the single scheme agent and the loss of choice and competition within the scheme. This had caused a deterioration in claims management as well as a depletion of the broader pool of experience of claims managers in the NSW workers compensation system.
The Medical Support Panel was thought to be completely unnecessary, creating more delays… The MSP process required multiple levels of internal review at EML, unacceptable MSP responses and further delays which effected the worker’s recovery and the employer’s premium.’
The review did not cover matters around medical treatment in any detail because the pre-eminent concerns raised were about delays to treatment caused by poor claims management. There were some concerns expressed about lack of choice and independent medical examiners, but this was regarded as a result of poor execution rather than an inherent problem with the new claims model.
November 5, 2019
The draft report from the Productivity Commission is a comprehensive overview of mental health issues in Australia. I have selected some sections relevant to civil psychiatry. However first a few general comments.
- The term Mental Health is taken as a whole, collapsing categories of people ranging from those feeling distressed because of environmental stressors, eg adjustment disorders, to people with serious mental illness. The following quote illustrates the confusion:
• In any year, approximately one in five Australians experiences mental ill-health. While most people manage their health themselves, many who do seek treatment are not receiving the level of care necessary. As a result, too many people suffer additional preventable physical and mental distress, relationship breakdown, stigma, and loss of life satisfaction and opportunities.
• The treatment of mental illness has been tacked on to a health system that has been largely designed around the characteristics of physical illness. But in contrast to many physical health conditions mental illness tends to first emerge in younger people (75% of those who develop mental illness, first experience mental ill-health before the age of 25 years) raising the importance of identifying risk factors and treating illness early where possible.
In these 2 paragraphs it is unclear as to whether or not mental ill-health and mental illness are the same. Are the statistics in the second paragraph relevant to the first paragraph?
The result is equivalent to a report discussing prevention, treatment and social support options for all physical illness without clarifying what conditions are being discussed. In other words, by taking mental ill-health (their term) as an entity it misses out on the syndromal issues regarding different causation,symptoms, effects of symptoms and appropriate direct and other care.
2. The costing ranges from accurate (2018-2019 Commonwealth expenditure on mental health care – $3.6bn ) to a questimate (The annual cost of informal care provided by family and friends). The basis of this and other such estimates are discussed in an appendix but are impossible to obtain with any accuracy, nevertheless it and other estimates are placed side by side with much more accurate figures. In my view this is misleading. This figure is also said to be a conservative estimate!
3. The section on work and mental health is all encompassing. However it does not explore the complex psycho-socio-medical milieu of many mental health claims. Those of us who do the work of assessing claimants know of these issues and are aware that relationship issues are usually paramount, no matter the listed cause of the psychological injury.
I was pleased to see it picked up on the discrimination against claimants with work related psychological injuries in accessing benefits.
here are a few excerpts:
Table 1 Estimated cost of mental ill-health and suicide 2018-19
Cost category $ billion per year
Australian Government expenditure
healthcare (includes prevention) 3.6
other portfolios (eg. employment, psychosocial support) 1.3
State and Territory Government expenditure
healthcare (includes prevention) 6.9
other portfolios (eg. education, housing, justice) 4.4
Individual out-of-pocket expenses 0.7
Insurer payments for healthcare 1.0
Informal care provided by family and friends 15.0
Loss of productivity and reduced participation 9.9-18.1
Cost to economy (excluding the cost of diminished health and wellbeing) 43-51
Cost of diminished wellbeing (for those living with mental ill-health or self-inflicted injuries, and/or dying prematurely, including those who die by suicide) 130
Other costs that overlap with (and cannot be added to) the above
Costs to the economy of suicide and suicide attempts (excludes the costs of pain and suffering of the individual and their family and friends) 16-34
Income support payments for those with mental ill-health and carers 9.7
• Cost to the Australian economy of mental ill-health and suicide
– $43 to $51 billion per year
Including State and Commonwealth costs re healthcare, education, housing and justice-insurer payments healthcare-informal care family/friends/ loss of productivity
• Plus approximately $130bn per year associated with reduced health and life expectancy
TOTAL COST $173bn – $181bn
Productivity Commission modelled the cost of forgone output due to mental ill health $9.9 billion – $18.1 billion in 2018-19 (does not include absenteeism cost)
Provisional liability and interim payments
Some workers compensation schemes provide support for all workers compensation claims — not just mental health related claims — prior to liability being determined: the New South Wales scheme refers to these arrangements as provisional liability, South Australia as interim payments and the Tasmanian scheme as ‘without prejudice’ payments (table 19.2).
Under these arrangements, the injured worker is assumed to be entitled to benefits (including for the loss of income), and is supported on the basis of this assumption, unless and until a decision on liability is made to the contrary. These arrangements provide for the payment of benefits (for a specified period) and medical expenses (typically to a specified amount) before a decision is made on liability under the relevant legislation. For example, the Tasmanian scheme makes ‘without prejudice payments’ for limited medical expenses up to the value of $5000 and the New South Wales scheme meets medical expenses of up to $7500 under provisional liability. This can reduce delays for an injured worker in gaining access to the appropriate medical attention and income and reduce other potential stressors while the decision of liability is being determined. However, where a final determination is made to deny the claim any payments made are recoverable as a debt in South Australia whereas in New South Wales and Tasmania the insurer is not able to recoup these payments.
Productivity Commission Recommendations
- Individual placement and support programs that assist people with mental illness to work and reduce reliance on income support.
- Mental health part of workplace health and safety, with codes of practice for employers developed and implemented.
- No-liability clinical treatment should be provided for mental health related workers compensation claims until the injured worker returns to work or up to six months.
These recommendations, especially 1 and 2 are already being done but the return to work rate for people with work related psychiatric injury has not changed for more than 10 years.
The 3rd recommendation is problematic, who will pay and why is this limited to people with mental health problems?
I commend the draft report to you for whiling away a pleasant Sunday afternoon.
May 6, 2019
The Canberra Times (5 April 2019) reported that Canberrans injured in a motor vehicle accident will not be able to claim any insurance for anxiety or depression caused by the crash, under proposed changes to the compulsory insurance scheme.
The Barr government Motor Accident Injury Bill passed in principle on Thursday, with the details to be debated when the Assembly resumes sitting next month.
The ACT government is ditching its common-law compulsory third party insurance scheme in favour of a hybrid, no-fault model. But there are significant concerns about some of the exclusions proposed. Photo: Rohan Thomson
But the ACT Law Society and ACT Bar Association have written to all parliamentarians highlighting fundamental problems with the proposed scheme.
Claimants will have choose between getting compensation for pyschological or physical injuries, meaning they cannot combine the physical and psychological injuries they suffer from the accident.
Their insurer only has to pay for one whole person impairment assessment as well, so if the injured person wants to be assessed for both physical and psychological injuries, they will have to foot the bill.
The definition of psychological injury also excludes psychiatric disorders such as depression and anxiety, meaning people can only get compensation for conditions like post-traumatic stress disorder or “mental shocks”.
In a speech that drew heavily from the Law Society and Bar Association letter, Canberra Liberals leader Alistair Coe described the exclusions as “appalling”.
“I cannot overstate the effect these changes would have,” Mr Coe said.
“The government has not addressed the significant issues raised by stakeholders and the Assembly inquiry. The Canberra Liberals believe Canberrans should continue to have access to a comprehensive CTP scheme that supports the rights of motor vehicle accident victims.”
The Law Society and Bar Association also said provisions that would allow children still getting treatment for their injuries four and a half years after their accident to pursue more benefits were easily circumvented.
“There is nothing to stop an insurer ceasing treatment and care after four years and five months and effectively avoiding the automatic consequences,” they said.
However Chief Minister Andrew Barr said insurers could lose their licence if they did not follow the rules set out in the scheme which state they must provide people with reasonable access to treatment and care.
“Now of course there is no such thing as a perfect accident insurance scheme and as we’ve said from the start of this reform project, we’re aiming to deliver a scheme that best reflects the prioirties and the values of this community,” Mr Barr said.
“We have been upfront in acknowledging there will always be trade-offs and competing views when emarking on an overhaul this significant.”
Mr Barr said of the 1500 people injured a year on Canberra’s roads, only about 900 could access the existing, fault-based system.
“The changes we are making would mean around 600 more Canberrans would be covered,” Mr Barr said.
However Mr Coe said this was only achieved by slashing the rights of not-at-fault drivers.
“Quality of life payments would be cut by 80 per cent. There’d be a 31 per cent reduction in loss of earning compensation, a 26 per cent decrease in care costs and reimbursement of private medical costs and public hosptial costs would drop 17 per cent and 6 per cent respectively,” Mr Coe said.
August 13, 2018
This review by Mr Mansfield is explicitly not to comment on government policy so his statement that ‘There would appear to be no rational reason for distinguishing psychiatric injuries from other types of injuries in terms of compensability or causation under the RTW Act.204 This is a policy position that merits review once the RTW Scheme has matured.” Mr Mansfield also commented on the government’s introduction in awards for government employees that boost their benefits in certain situations, eg danger, He wrote that ‘the ‘modification’ of the RTW Act by those instruments, therefore, may in the future make the management of claims under the RTW Act in the case of Public Sector employees more difficult.”
Other issues regarding the Act were raised in submission
- There is no combining of psychiatric and physical injury.
- Work has to be the contributing cause rather than a contributing cause so any pre-existing psychiatric condition may make a claim void.
- As compared with physical injury, there is no lump sum payment for psychiatric injury even if the PIA meets the 30% threshold for serious injury.
- SA amendment July 2015 allows workers to choose their preferred assessor regarding Permanent Impairment Assessment (PIA) leading to only 6 assessors doing the bulk of the work.
The discrimination against workers with psychological injuries is blatant. it was commented on in submissions from the SA branch of the RANZCP and AMA SA.
May 6, 2018
This year I decided not to apply to become an IME with WorkCover. Some years ago I had been an IME with the TAC but I notice that I had had no referrals for six months or so and contacted the TAC and was told that I had resigned! I protested about this and demanded to see what had been written. “Oh no, you resigned over the phone!” It was clear I was not wanted and this was a way of removing me from the scene. I continued to apply to be a WorkCover IME but the experiences of working with WorkCover led me to deciding not to reapply. Those who have reapplied both for the TAC and WorkCover have found it a demeaning experience. They have had to be interviewed in person by a functionary, there has been no input from anybody in the profession. They have had to agree to an onerous contract(called a declaration) in which they must abide by the fee schedule. To give you an idea this is what is said about dispute resolution
If a dispute arises in relation to my provision of services as an IME (other than a notice given by WorkSafe under clause 26 of this declaration), I or WorkSafe may request that the following dispute resolution process be utilised:
a) In the first instance the dispute will be discussed between myself and the WorkSafe’s Manager, Provider Performance and Quality;
b) If the dispute remains unresolved the matter will be referred to the WorkSafe’s Director, Worker Support and Health (or his or her nominee) and myself or my nominated representative;
c) If the dispute remains unresolved, it will be submitted to a mediator. The cost of mediation will be shared equally between WorkSafe and the IME; d) Where the parties to the dispute cannot agree on a mediator, the Chief Executive of the Law Institute of Victoria (or his/her nominee) will be asked to appoint a mediator; e) The above process will be carried out within 30 days of notification of the dispute.
WorkSafe Victoria have no interest in your safety and make no provisions for dealing with this issue. The fee schedule is lower than any other state or territory.
March 13, 2018
Wrongs act claims are usually complex and difficult. Most of the claims I see relate to medical negligence, bullying at school and falls, including some bicycle accidents where there was no car involvement.
There are significant problems with medical negligence claims in determining whether or not the impairment is secondary to a physical injury. For example a delay in diagnosis of cancer probably has a non-secondary component but what about failed surgery? What about stillbirths?
I have seen some claimants with complex physical and mental health issues prior to the alleged incident who relate the totality of their current health issues to the particular incident.
I was involved in a case some time ago with the claimant who had been prescribed sertraline by a psychiatrist and had developed an intractable rash that persisted for two years despite a variety of treatments and referrals to dermatologists. In desperation this woman searched the Internet and found there was a small number of cases where a rash arose from sertraline. She stopped the sertraline and her rash resolved.she made a claim against the psychiatrist. She was angry and distressed that she had had to put up with the rash for two years.
There seemed to be 2 questions, what was her diagnosis? Was her condition secondary to physical injury?
I took the view that the rash was a physical injury and that any psychiatric sequelae was secondary to that injury.
School bullying claims take a long time to assess. I usually interview the parents separately from the child. I am usually provided with school reports, psychologist reports and so forth. It is surprising how often the response of schools is so inadequate. On a number of occasions the offenders have received counselling but the person who was the subject of the bullying and that person’s parents become regarded by the school as a nuisance. One school principal wrote to a parent after yet another complaint saying “if you are not happy with a school, take your child elsewhere!”
Another issue is that psychiatrist have frequently asked by solicitors to do a GEPIC impairment assessment when assessing a Wrongs act claim. This is correct. However solicitors sometimes want you to include the GEPIC table and percentage impairment in your report. This is not correct. I have included a section of the act, note the highlighted section in (2).
WRONGS ACT 1958 – SECT 28LN Certificate of assessment
WRONGS ACT 1958 – SECT 28LN
- 28LN(1) amended by No. 102/2003 s. 16(1).
(1) Subject to section 28LNA and this section, an approved medical practitioner who makes an assessment of degree of impairment under this Part must provide to the person seeking the assessment a certificate of assessment.
(2) The certificate of assessment must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
February 26, 2018
I was surprised and pleased to receive the following paper from SA . What a contrast to the situation in Victoria!
ReturnToWorkSA is seeking to gazette fees for medical services for 2018-19, to be effective 1st July 2018.
The Return to Work Act 2014 requires us to consult with stakeholders prior to a fee schedule being published and this paper forms part of the formal consultation process. We regard this as a valuable process, and all feedback is carefully considered.
This paper describes the proposed changes and fee calculation methodology for provider services and invites feedback. The formal consultation process will be for a four week period commencing on Wednesday, 7th February 2018.
Please provide your feedback to ReturnToWorkSA by close of business on 7th March 2018 to firstname.lastname@example.org
If you have any questions regarding this document, please contact Simon Hynes, Program Lead, Provider Regulation and Support on 8238 5757 or email email@example.com before the closing date so these can be considered within the consultation timeframe.
Current fee calculation methodology
The Return to Work Act (2014) requires ReturnToWorkSA to set fees based on the average charge to private patients for the relevant service. The amount fixed for the service must not exceed the amount recommended by the relevant professional association.
ReturnToWorkSA obtains data from Medicare Australia to calculate average private charges for provider groups. Fees are then adjusted relative to this benchmark, based on Scheme needs.
The fee increases recommended in this paper (excluding GP consultations) have been calculated after taking this information into consideration.
Medical Practitioner fees
ReturnToWorkSA with the Australian Medical Association (AMA) through a Memorandum of Understanding has agreed to parity with published AMA rates for General Practitioner Attendance fees up to but not exceeding an annual 5% increase.
The following table illustrates the Average Private Charge (APC) changes, the percentage differences for APC and Medicare charges and the proposed changes for the ReturntoWorkSA medical fees:
||APC change for 2017-18
APC for 2017-18
Medicare Charge for 2017-18
|Proposed RTWSA Change
|General Practitioner Attendance fees (Within Schedule 1A)
||1.8% increase (AMA rate equivalent)
|Remaining Schedule 1A and 1B fees
Given there has not been an increase in average private charges for medical fees during 2017-18, there is no proposed increase to medical fees (excluding General Practitioner Attendances) for 2018-19.
To enable fees to take effect from 1st July 2018, ReturnToWorkSA will:
- consider and respond to feedback provided by stakeholders; and
- seek the approval of the ReturnToWorkSA Board and the Minister for Industrial Relations for publishing in the South Australian Government
If you have any questions or comments regarding this paper, please contact Simon Hynes, Program Lead, Regulation and Scheme Support on 8238 5757 or email firstname.lastname@example.org by close of business on 7th of March 2018.
December 8, 2017
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)
- 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%
- Ray – 45 year old CEO local council
- Council corruption
- Whistleblower – threats made
- Caught drink driving in Council car after work function
- Attempts suicide – hospitalised
- 2 years later – unemployed, wife left, broke
- Psychiatric treatment
- Severely depressed, can’t concentrate, ’paranoid’, pseudohallucinations, gambled away his money, panic attacks, guilty, suicidal thoughts, withdrawn, road rage
Determine Impairment and severity of the impairment within the median class.
- For each class selected determine severity
- Low (L)
- Medium (M)
- High (H)
- Determine median class
- determine median severity within that class.
- Any severity measures in lower class become Low range L in median class
- Any severity measures in higher class become High range H in median class
- Intelligence Class 1 Low severity (L)
- Thinking Class 3 High (M)
- Perception Class 2 Medium (M)
- Judgement Class 3 High (M)
- Mood Class 3 Medium (M)
- Behaviour Class 3 Medium (M)
1L, 3M, 2M, 3M, 3M, 3M – Median Class 3 (no secondary or consequential impairment)
Severity ratings adjusted for Class 3, below = L above = H
1L = L, 3M = M, 2M = L, 3M = M, 3M = M, 3M = M
In order LLMMMM – median severity in Class 3 = Medium
Medium severity in Class 3 – 35-40%
WPI Pure Mental Harm or Non secondary impairment is 35%
August 24, 2017
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.
It seems onerous but doable.
August 9, 2017
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.
- 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.
May 11, 2017
The Senate Community Affairs References Committee
Complaints mechanism administered under the Health Practitioner Regulation National Law May 2017
LIST OF RECOMMENDATIONS
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.
5.24 The committee recommends that AHPRA and the national boards develop
and publish a framework for identifying and dealing with vexatious complaints.
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.
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.
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.
5.44 The committee recommends that AHPRA develop a transparent
independent method of determining when external advice is obtained and who provides that advice.
5.48 The committee recommends that AHPRA consider providing greater
remuneration to practitioners called upon to provide clinical peer advice.
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.
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.
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.
5.71 The committee recommends that the COAG Health Council consider
making a caution an appellable decision.
5.74 The committee recommends that the COAG Health Council consider
whether notifiers should be permitted to appeal board decisions to the relevant tribunal.
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.
5.81 The committee recommends that AHPRA institute a practice of providing
monthly updates to complainants and medical professionals whom are the
subject of complaints.
March 8, 2017
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:
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.
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.
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.
 Ben Mahler, Expert Matters: Only some experts in harmony, KordaMentha,
February 16, 2017
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.
January 16, 2017
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:
Senate Standing Committees on Community Affairs
PO Box 6100
Canberra ACT 2600
Phone: +61 2 6277 3515
December 16, 2016
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.
November 28, 2016
Mental stress has accounted for an average of 95% of mental disorder claims over the past 10 years.
SafeWork Australia produced a report about this in April 2013.
Their findings were:
Mental stress claims are the most expensive form of workers’ compensation
claims because of the often lengthy periods of absence from work typical of
>> Mental stress claims are predominantly made by women.
>> Men and women are more likely to make a claim for mental stress as they
get older but after they reach 54 years the likelihood that they made a claim
>> More Professionals made claims for mental stress than other any other
occupation with over a third of their claims made for Work pressure.
>> There were more mental stress claims made for Work pressure than any
>> The hazards that result in mental stress claims vary with worker age.
Younger workers are more likely to make claims as a result of Exposure to
workplace or occupational violence, whereas Work pressure is the main
cause of mental stress claims for older workers, peaking for those aged
>> General clerks, School teachers and Police Officers accounted for the
majority of claims for Work pressure.
>> Women were around three times more likely than men to make a workers’
compensation claim due to Work-related harassment &/or workplace
bullying. Approximately one-third of all claims in this mental stress subcategory
were made by workers in the occupational categories of Advanced
clerical & service workers and General clerks.
>> For the industries with the highest number/rate of mental stress claims, the
majority of claims were for Work pressure. This was particularly true in the
Education sector. Claims for Exposure to workplace or occupational violence
were notable in the Retail trade industry, while the Transport & storage and
Health & community services industries dominated claims for Exposure to a
WorkSafe Australia produced a further report in 2015 – Work-Related Mental Disorders profile
Their findings were that 6% of all workers compensation claims were for mental disorders .
The typical compensation payment for such a claim was $23,600 totalling $480 million for the 7820 Australian claimants. The average period of time spent off work was 14.8 weeks. 39% of these claims were for harassment/bullying/exposure to violence. 90% of all mental disorder claims were attributed to stress.
65% of all mental disorder claims were awarded to workers aged 40 or over.
For 1 million hours of work there were 0.5 mental disorder claims.
Occupations most at risk:
First responders-police, paramedics and firefighters comprising one in five of this group
welfare and community workers affirm one in 10 were compensated, prison officers, bus and rail drivers and teachers of whom one in five were compensated.
The more common conditions included reactions to stressors (41%), anxiety/stress disorders (28%) and post traumatic stress disorder (11%). Combined they accounted for, on average, about 4/5 mental disorder claims over the period.
The most up-to-date statistics are those provided by WorkSafe Western Australia in October 2016.
Their findings were that: Over four years, the number of stress-related claims increased by 25 per cent. In 2015/16, there were 547 stress-related claims lodged, representing
3.2 per cent of all workers’ compensation lost-time claims.
Although the number of stress-related claims increased, the frequency rate (claims per million hours worked) for stress-related claims is stable.
Females accounted for 59 per cent of stress-related claims compared with 41 per cent for males.
In terms of prevalence of stress claims, female workers tend to have a higher frequency rate.
The top three industries for stress-related claims were:
Health care and social assistance 25%
public administration and safety 24%
education and training 16%
The causes of stress and later claims included:
Work pressure 39%
Harassment and bullying 23%
exposure to a traumatic event 19%
exposure to workplace violence 14%
other causes 5%
There appears to be a significant drop in the number of stress-related claims in WA representing 3.2% of all workers compensation lost time claims, the WorkSafe Australia statistics were that 6% of all claims were stress-related. In Victoria in the late 1990s about 5.5% of all claims were stress-related. There appears to have been little real change in the incidence of stress-related disorders over the last 20 years.
November 24, 2016
I have downloaded all the permanent impairment guidelines I can find in Publications, look in Guidelines Workers Compensation
Examination and provision of report and certificate — psychiatric — complex assessment (eg. reviewing significant documented prior psychiatric history) $3554.35 or $3863.35 (minus fee for intrpreter. Think about what you get paid.