It has been a while since I posted. I thought it would be useful to discuss a few topics that have arisen.
The vexed question of “mental health”. For some time I have been concerned that “mental health” is used as a synonym for our responses to any situation that does not appear to be positive. Recently, for example we have been told the counselling is available for those who voted Yes in the referendum! Should we provide counselling for those who voted for the party that loses the next election?
It seems, as a society, that we do not acknowledge that sometimes people are unhappy, disappointed, resentful or hurt without this being regarded as a “mental health problem” therefore amenable to “counselling”. The fact is that life is full of disappointment, it is difficult to see what role counselling has to offer in those situations. This leads to the next issue that I have been pondering recently, resilience.
I have seen a number of older people recently who have experienced a variety of trauma including transport accident, medical mistakes, dog attacks amongst others. What has impressed me has been the attitude of getting on with it, “it is what it is”, “I have to deal with what I’ve got”.
I saw a man recently. Kevin is now aged 66 and had bowel cancer 20 years ago requiring a partial resection, chemotherapy and radiotherapy and he has been in remission since then. He was recently diagnosed with low-grade prostate cancer and was advised to have a prostatectomy. It was suggested that a robotic prostatectomy rather than an open procedure would lead to less trauma, fewer complications and less time off work.
Unfortunately the operation led to a bowel perforation with the development of a recto vesical fistula that was unrecognised for weeks. He developed peritonitis and had further major surgery. He developed leakage of urine through his anus. He had a colostomy fitted and then a nephrostomy but the perforation to his bladder could not be repaired and so his bladder was removed and he now has an artificial bladder created from part of his small intestines draining into another bag. It is two months since his last operation.
He has not had any psychiatric or psychological treatment, he has no current healthcare providers and takes no medication. He deals with his bags himself. He is looking forward to go back to work as a driver as he is not able to return to his previous work that involved a good deal of lifting and carrying. He is at times frustrated about what happened but tries to put it behind him and intends to make the best of the rest of his life.
Do you think he has a mental health problem? I thought he was annoyed by the complications that had occurred, he had lost some trust in his doctors, he was frustrated by having a colostomy and a urine bag but denied being depressed or anxious. Of course he wished he had not had the initial procedure but that was “water under the bridge” and he did not dwell on it.
I thought he was a great demonstration of resilience and did not have a diagnosable psychiatric disorder..
The other issue that has come up as being Covid. We hear so much about how damaging Covid has been to individuals and the community and I have no doubt that is true. I have been intrigued however that none of the people I have been assessing over the last two years have a claim centred around Covid. Indeed many of them found the lockdowns beneficial as they were already experiencing anxiety away from home and the lockdowns made them feel more normal. Of course for some the lockdowns were difficult.
I will be interested to see whether or not Covid issues emerge over the next 12 months or so. As RSI was the fashionable condition in the 90s and bullying seems to be the current fashionable complaint, it may be that Covid takes over that role!
Workplace compensation payments for mental health injuries could be limited to post-traumatic stress disorder and exclude bullying and harassment, under a major overhaul of the Victoria’s troubled WorkCover scheme.
It’s a politically risky decision and is one of several options being canvassed by the Andrews government in its delicate talks with business and unions, as it tries to work out how to rein in the program that has suffered billion-dollar budget blowouts.
And it’s little surprise that the government is tackling the issue after the state election.
While Labor basked in the glow of its election victory over summer, some big challenges are now starting to grip the Andrews government — and many of them involve money.
Last week, the government declared the WorkCover scheme was “fundamentally broken”.
The scheme is simply costing the government too much money.
Benefits paid to injured workers are now exceeding the premiums paid by business to fund the scheme by $1.1 billion every year – and that gap continues to grow.
I started doing civil assessments on a small-scale from the time I commenced practice. I have been working almost exclusively as a civil assessment psychiatry for the past 20 years. One of my colleagues who had been working in the public sector has commenced doing full-time civil assessment with the explanation “it’s time I made some real money like you guys!” Do we do it for the money? That may be one of the reasons but what are the motivations for doing civil assessment psychiatry. I have asked this question of myself recently. This has occurred in the context of the almost total lack of support and validation from the Faculty of Forensic Psychiatry and the sense I get from colleagues especially those working in criminal justice psychiatry the work I and other civil assessment psychiatrists do is regarded as distasteful, a misuse of our expertise, that we are guns for hire and that we do not help people. This perception real or imaginary on my part is important.
There has been no interest expressed by anybody in the Faculty or the college to develop a training program in civil assessment psychiatry, attempts to establish a new section have been strongly resisted.
This has raised a question for me as to how do I justify what I do and how do I counter these perceptions. The facts are that we do not treat people, we do not have any ongoing commitment to patients, we do not work in hospitals, we appear to be paid well. How then can we justify our work ethically and morally.
There are some misconceptions, for example, that we are paid excessively. I now work 3 1/2 days a week. I do three assessment a day. The preliminary reading for each case may require me to read up to 1500 pages of documentation and sometimes more. Each interview takes me two hours. Preparation of the report takes another two hours. In all, for the average claim I spend 5 to 7 hours and at times up to 12 hours.. My hourly rate is about or less than the fee for a consultation up to 45 minutes. I do not regard that as excessive. Preparation of a report is challenging. I am always aware that I may be called to justify the report and my opinion in court. There is often a good deal of background reading required. It is common to me to be asked to refer to the professional literature when providing an opinion. The work is demanding and requires intense concentration.
Nevertheless the issue remains that we are in a profession that is meant to be a helping profession and that we have obligations to patients/clients to do no harm and be of help. There are of course limitations on this for us because the civil assessment psychiatrist must not be an advocate for either party and cannot be in a treating relationship with clients. Nevertheless I have found , over the years, that allowing people to tell their story over an extended period and, more importantly, have their story heard, is beneficial. Psychiatric assessments are also in integral part of any beneficial scheme for people who have been injured so the claim can be finalised and the legal matters resolved. Psychiatric input is essential for many claims and is likely to become more so in the future. For better or for worse this work is essential to assist in resolving a variety of issues for people so they can get on with their lives.
It is incumbent on us to behave ethically, for me, that means to do the required work before seeing the claimant, giving the claimant an adequate opportunity to inform me of their circumstances and treating the claimant respectfully. I am also required to prepare a report and an opinion that is, as far as possible, unbiased, fair and equitable. I believe that the work we do is of value to individuals and the community. I regret that some of our colleagues have a different view.
The Australian dated 13 September 2021 had an article entitled Covid Claims plague WorkCover scheme referring to the situation in New South Wales. It noted there was a rush of WorkCover claims. Between June 27 and September 3, 2021 total Covid 19 claims soared from 562 to 955. This is well up from the 301 Covid 19 related claims against the scheme by August 2020. The number of workers claiming compensation for contracting Covid 19 almost tripled to 367. The number who have made claim for exposure has grown to 254. The latest figures also include 146 claims for psychological injuries linked to Covid. The data does not capture the most recent week of increases in Covid 19 case numbers in New South Wales and nor does the figure capture the full magnitude of Covid 19 related claims with several very large businesses such as supermarkets and banks operating own self insurance schemes. In 2020 New South Wales passed laws that put the onus on an employer to prove a worker did not contract Covid 19 at work.
In my view Victoria will follow the trend in New South Wales.
When the Covid restrictions eventually ceased and indeed when the whole pandemic grinds to a halt it would be interesting to have a conference about videoconferencing looking at such issues as the quality of the interview, the relationship with the claimant, the length of the interviews etc.
Medico-legal examinations during COVID-19
In response to the current COVID-19 restrictions, SIRA has updated the guidance for medico-legal examinations.
When scheduling a medico-legal examination, the insurer/referrer must consider whether attendance at an appointment is permitted by the public health orders in force at the time.
The current restrictions mean that:
The Productivity Commission Report on Mental health was released in December 2020. i was asked by the Victorian Faculty of Forensic Psychiatry to give a Zoom presentation. This is the result. I initially called it ‘A Curate’s Egg – good in parts’, but as I became increasingly disenchanted I changed the name to ‘The Good, the Bad and the Ugly.’ Two examples:
Prevalence of Mental Illness
Later the Report states:
About 17% of people experienced an episode of mental illness over the past 12 months:
It states that Mild conditions can be either self‑managed or managed within either primary care or community service settings.
Moderate conditions can require specialist support, including psychosocial support services and specialist mental healthcare.
Severe conditions need hospital‑based care or treatment from specialist community mental health teams and a range of community services to support their recovery.
Roughly one third of people with a severe condition have a persistent disorder or complex needs.
Commentary
Cost of Bullying
WorkSafe update 21 June 2021
From 1 July 2021, WorkSafe will provide provisional payments for mental injury claims.
Eligible workers and volunteers who submit a mental injury claim can access provisional payments for reasonable treatment and services while their claim is being determined.
Provisional payments will be available for 13 weeks, regardless of whether a claim is accepted or rejected.
We’ve included a stakeholder pack with information to help you understand the key changes and how your networks can support patients.
The pack includes sample copy and digital assets for you to download and on-share with your networks through your own channels.
https://comms.worksafe.vic.gov.au/link/id/zzzz60d02384916f4511Pzzzz60d01f3c4c463416/page.html
What you always wanted to know about secondary psychiatric impairment*
*but were afraid to ask
First – a brief survey of workers compensation
In 2050 B.C., ancient Sumerian law provided compensation for an injury to a worker’s specific body parts, for example, the loss of a thumb was worth twice the value of loss of a finger.
Ancient Greek, Roman, and Chinese laws
Industrial revolution vastly increased the extent/ rate of work injuries. Employers could be sued but not if:
German Chancellor Von Bismarck introduced workers’ compensation in 1884
Victorian Employers’ Liability Act 1886 abolished defence of 3 reasons above
Australian legislation – workers’ compensation
SA Workmen’s Compensation Act 1900
WA Workers’ Compensation Act 1902
Qld Workers’ Compensation Act 1905
NSW Workmen’s Compensation Act 1910
Tasmania Workers’ Compensation Act 1910
Commonwealth Workers’ Compensation Act 1912
Victoria Workers’ Compensation Act 1914
NT Workmen’s Compensation Act 1920
ACT Workmen’s Compensation Ordinance 1951
Victorian Workers’ Compensation Laws
The Workers’ Compensation Act 1914 (modelled on UK Workmen’s Compensation Act 1906)
The first ‘no fault’ statutory benefits scheme.
This scheme paid benefits for injuries “arising out of and in the course of employment” and operated concurrently with the right to sue.
Workers had to choose whether to receive statutory benefits or make a common law claim.
Table of Maims in 1915 amendment that continued almost unchanged until 1985
In 1948 ‘no fault’ extended to injuries ” arising out of or in the course of employment”.
1970s Problems:
A brief comment on the Table of Maims
The Table of Maims was a list of various injuries with a percentage of the total amount of compensation
The 1914 Act provided a rudimentary Table of Maims.
Special provision is made for the payment of a lump sum ranging from 5% to 100% of £500 in respect of total incapacity where the accident results in loss of a member, or of hearing, or of sight in one or both eyes.
Table of Maims introduced in the Workers’ Compensation Act 1915 e.g.:
Total loss of the sight of both eyes 100%
Total loss of a foot 65%
and
The latter 2 ‘maims’ was in the legislation in 1946, 1953, 1958, 1973 and 1975.
The Accident Compensation Act 1985 also included the Table of Maims (section 98) but the second of the 2 maims re psychiatric injury was changed to:
Psychiatrists were asked to comment on the percentage of
(later called section 98 claims). There was no method prescribed for determining this, it was a guess.
In 1992 legislation amended the Table of Maims
was substituted by:
An additional section was added –
The Workplace Injury Rehabilitation and Compensation Act (2013) replaced the Table of Maims with the No Disadvantage—Compensation Table listed in Schedule 4. Permanent brain damage and ’pain and suffering’ were excluded.
Accident Compensation Act 1985
ACA 1985 – now acknowledged as a well meaning disaster
workers got too much too soon and for too long – financial failure
The ACA 1985 introduced the American Medical Association Guides to the Evaluation of Permanent Impairment. This was the first use of the AMA Guides in Australia.
Chapter 12 Mental & Behavioral Disorders proved to be a major problem.
There was no method of combining scores and examples given were wrong. Impairment levels ranged from 5% to 60% for the same person. There was real concern that work related psychiatric injury would be excluded.
The User’s Manual was developed informally – the manual introduced the Median method and became the de facto standard, quickly impairment levels became more reliable. It is the basis of the GEPIC.
The Transport Accident Act 1986 was developed in conjunction with the ACA and lead to the formation of the Transport Accident Commission, it included:
Medical Panels were set up in March 1990
The Government recognized 2 major problems with stress claims leading to a significant budget blowout.
The first issue was dealt with in amendments in 1992. A new section was taken from Commonwealth legislation regarding ComCare:
S.82(2A).
There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one or more of the following—
(a) management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker’s employer; or
(b) a decision of the worker’s employer, on reasonable grounds, to take, or not to take any management action; or
(c) any expectation by the worker that any management action would, or would not, be taken or a decision made to take, or not to take, any management action;
This graph illustrates the dramatic drop in the number of ‘stress’ claims both in overall terms and as a percentage of all claims. Ironically this proved to be a ‘paper tiger’. To my knowledge very few, if any claims were thrown out on this basis.
The second issue of the ‘psych top-up’ proved more intractable
Workers have a physical injury and become depressed. A back injury may lead to an impairment of 15%, the associated depression leads to a psychiatric impairment of 15% and the worker’s impairment has thus reached the 30% threshold for enduring payments and a common law claim.
The Government’s Problem
Serious injury claims went from 1 in 8 in 1993/4 to 1 in 4 in 1995/6 and were still rising.
The legal profession openly boasted that this was the loophole through which they get serious injury status for their clients.
In a survey of 300 claims, over 55% of workers with “serious injury” status after a psychiatric or psychological assessment had never had any psychological or psychiatric treatment, either before or after the assessment.
The financial impact of this loophole was in excess of $300 million.
Introduction of Secondary and Non secondary psychiatric impairment
This financial blowout lead to legislative action in 1996 by the Kennett Liberal government. There was no discussion with the RANZCP or the AMA. In late 1996 the government introduced amendments to the ACA 1985. Amongst the amendments was a new section:
Section 92 (2)
In assessing a degree of impairment under sub-section (1) regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence or secondary to, a physical injury
When introducing this section, the minister gave 4 examples of how this would work.
Example 1
The minister said that the worker’s psychiatric injury is a direct result of the explosion that caused the physical injuries and the psychiatric impairment.
He said: in that case the psychiatric impairment would be included in the worker’s overall impairment assessment for the purposes of determining serious injury.
Example 2
Minister: Any resultant psychiatric impairment would be included in the assessment of the worker.
He said ’In both the examples I have given the psychiatric component is not secondary or consequential to the injury. It is a direct result of the events or circumstances in the workplace that gave rise to the physical injury and as such would be included in determining the worker’s impairment level’.
Example 3
The minister said that:
The Physical impairment is 10 %, impairment from depression not included therefore no serious injury (impairment below 30%).
Eligible for payments if the secondary psychological condition or the physical injury meant unable to work.
The worker would receive benefits at 70 per cent of pre-injury earnings if classified as totally and permanently incapacitated.
Eligible for medical and like services
Compensation under the table of maims.
But no action against the employer at common law unless he qualified under the narrative safety net.
Example 4
The minister said:
impairment due to chronic anxiety excluded from worker’s impairment
Anxiety state did not arise out of the circumstances that gave rise to the initial physical injury.
Commentary
Examples 3 & 4 consistent with understanding of 2ndary impairment
By contrast, Examples 1 & 2 imply that ALL the psychiatric impairment from the work injury would be included. This is not our current understanding.
Now we would include impairment from PTSD and exclude impairment due to depression/anxiety from the physical injury!
Comments from the Labor Opposition
The Accident Compensation (Amendment)Act 1996 was passed December 1996
Section 91(2) In assessing a degree of impairment regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
Inserted into the Transport Accident Act 1997 Section S 46A
Result
There was widespread confusion for all. No one, including the courts, solicitors, barristers and psychiatrists knew how to apply this new section of the Act.
There were many newspaper articles about the perceived “injustices”.
One item claimed that a police officer who was shot at and developed PTSD would receive higher benefits than a police officer who was shot and wounded.
Confusion abounded!
How did I deal with this?
My first response
Follow the Minister’s first two examples:
For a worker or a transport accident victim who had both physical and psychiatric injuries from the same accident I assumed that the whole person impairment would be accepted.
Result: The courts took no notice of my explanation and told me I was wrong.
Second response
I iInterpreted the legislation strictly. In determining whole person impairment I took no notice of any impairment there was consequential or secondary to a physical injury.
Result:
“Doctor, what is the claimant’s whole person psychiatric impairment?”
“I have already told you”.
“But you have only given us the impairment that is not secondary to physical injury!”
“But that is what I am required to do.”
“Doctor, I will ask you again, what is the claimant’s whole person impairment?”
“I did not determine the claimant’s impairment secondary to physical injury as I am not required to do so”.
“Doctor, for the third time what is the claimant’s whole person impairment?”
In other words, my reading of the legislation was not regarded as correct.
My third response
I assumed that since the AMA Guides combined subsidiary impairments using a table, the same process should apply to combining secondary and non secondary psychiatric impairment.
So, more humiliation
“The worker has a whole person psychiatric impairment of 20% and the impairment that is not secondary to physical injury is 15%”.
“So the impairment that is secondary to physical injury is 5%?”
“No, the standard practice of the AMA guides is that subsidiary impairments are combined. According to AMA 4, the combination of two subsidiary impairments of 10% is 19%. I have used the same logic with regard to these subsidiary impairments.”
Not accepted.
My fourth response
I assumed that secondary and non-secondary psychiatric impairment were additive
determine whole person psychiatric impairment and impairment secondary to a physical injury, the remainder being impairment not secondary to physical injury. I finally got it right.
It reminded me of the Monty Python skit about the Piranha Brothers
If you paid us protection we beat you up-that didn’t work
if you didn’t pay us protection we didn’t beat you up-that didn’t work
if you paid us protection we didn’t beat you up-that worked!
Introduction of American Medical Association 4th edition
American Medical Association 4th edition published in 1993 introduced into Victoria in 1997
AMA Guides 4th edition would replace AMA2. Chapter 14 Mental and behavioral disorders included a Table.
Section 98 (8) stated that the Reference to AMA Guides referred to the American Medical Associations’s Guides to the Evaluation of Permanent impairment (Fourth Edition).
Two Problems with AMA4 Chapter 14
UNWORKABLE –
What to do? In Victoria we chose to expand the User’s Guide and produced the Clinical Guide to the Rating of Psychiatric Impairment (CGRPI) gazetted in October 1997.
In 1999 NSW also decided to use AMA4. There was recognition in NSW of the problems with Chapter 14.
Nigel Strauss and I gave a presentation about the Clinical Guide to the Rating of Psychiatric Impairment to a representative group of NSW psychiatrists.
They ignored our work and developed their own guide based on AMA 4 -The Psychiatric Impairment Rating Scale (PIRS). PIRS is a measure of disability and not impairment. NSW, Qld, WA, NT and Tasmania also began using AMA 4 or 5 and since the PIRS is an expansion of Chapter 14 it was also used, most use a variation of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment.
The concept of secondary psychiatric impairment spread to all states and territories except the Northern Territory and the Commonwealth, the ComCare Guides.
In NSW, WA, Qld and Tasmania it was called Primary and Secondary Psychiatric Impairment.
The Victorian Wrongs Act (1958) was amended in 2003 so that a claim could not proceed unless the physical impairment was 5% or more using AMA 4 and the psychiatric impairment was more than 10% according to the GEPIC.
The ACA was replaced by the Workplace, Injury, Rehabilitation and Compensation Act in 2013 (WIRCA (2013) and Section 91(2) became Section 56.
In 2013 South Australia implemented a new Workers’ Compensation and Motor Accident Act that used AMA5 and the GEPIC South Australia also implemented the notion of secondary and non secondary psychiatric impairment but called it ‘Pure Mental Harm’ and Consequential Mental Harm’..
Irony
The Labor opposition has been in power for 20 of the last 30 years. Despite their cries of apocalypse they have never sought to rescind Section 92A (now WIRCA S 56)!
GEPIC
Opportunity for an amended version of the CGRPI arose in 2005.
The major changes were:
These changes were incorporated into the new version renamed
The Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC)
Gazetted on 27 July 2006 and incorporated into subsequent legislation replacing Chapter 14 of the 4th edition of the AMA Guides.
Nigel Strauss and myself have trained 140 psychiatrists in use of the GEPIC
Workers Compensation issues continue – Plus ca change etc.
The Report of the Victorian Ombudsman-2020 Follow-Up Investigation into the Management of Complex Workers Compensation Claims is a follow-up investigation to the report published in 2016 and the further report in 2019.
The concerns about Claims Agent selecting ‘hired guns’ lead to centralization of Psychiatric IME bookings
The most recent Ombudsman’s report discusses appointments of IMEs, feedback regarding the new selection criteria, quality assurance issues and changes since the 2016 investigation.
Concern about the lack of availability of Psychiatrist IMEs lead to a 25% increase in fees in April 2019.
There are continuing concerns that WorkSafe do not acknowledge that the skill set required of an IME is additional to the generic skills of medical specialists and general practitioners.
The assumption is that IMEs can perform the tasks required without additional training. This leads to inadequate reports and an apparent vacuum with regard to measures to improve quality. The assumption made by WorkSafe is that their selection criteria, induction and service standards are adequate.
The Most Recent Activity
An Independent Review regarding options for changing the current agent model regarding the management of complex claims arose out of the Ombudsman’s report.
The Options paper was release in 12/2020 with written comments to be made by 29 January 2021.
Challenges
Fashions in Claims
RSI , in 1985/86 there were 7890 claims compared to 616 claims for RSI in 1994/95.
Stress now second highest cause of claims
Bullying up to 40 % of claims
Concerns re ‘hired guns’
The dominance of the Medical Agencies and concerns over independence.
No improvement in Return to Work rate
Need for RANZCP Section of Civil Assessment Psychiatry
Video surveillance material is one of the unavoidable dilemmas we have to dealwith as civil assessment psychiatrists. I have been sentthree or more hours of video surveillance. A colleague was asked in court whether or not he had viewed the surveillance at normal speed. I thought his reply was excellent. He said “I viewed the relevant sections at normal speed!”.
For some years I have been advocating for viewing surveillance material with claimants. There was a notorious case more than 10 years ago when a psychiatrist was sent video surveillance material after he had seen the claimant and on the basis of that material changed his opinion without giving the claimant any opportunity to explain. As a result there was an appeal to the Medical Board and the psychiatrist was reprimanded.
Recently, as part of a Medical Panel in Victoria, the other psychiatrist and myself viewed the video material available in the presence of the claimant. She said the person in the video was not her! We agreed with her. Imagine if we had seen the video material in the absence of the claimant. The person in the video was doing many things that the claimant said she was unable to do.
A barrister told me that he had been acting for a man who had been videoed throwing firewood from the back of a truck to someone down below. He denied that he was the man being videoed and said it was his twin brother. The judge insisted he come the next day with his twin brother. He did so and his twin brother testified that it was him on the back of the truck. The workers claim was accepted. The barrister told me that as they were leaving the court the claimant said to him “I’m glad they didn’t ask who was catching the firewood!”
So, what have we learned? Only look at the relevant part of the video material at normal speed and otherwise fast forward. Keep notes of what you are observing. Try and view the video material in the presence of the claimant to ensure the claimant is the person on the video but also because of natural justice, allowing the claimant to explain why they were doing what they were doing.
I gave a PowerPoint talk on this topic on 21 December 2020. I looked at workers’ compensation legislation in Australia (briefly) and focussed on the origins of secondary and non secondary psychiatric impairment, primary and secondary impairment elsewhere except in South Australia where it is pure mental harm and consequential mental harm. I have discussed issues about this vexed topic previously. This is a word version of the talk.
This document has been developed by the Royal Australian and New Zealand College of Psychiatrists (RANZCP) to guide members who are preparing reports in medico-legal and/or forensic contexts. This includes reports based on independent medical examinations, and reports which are prepared for both civil and criminal matters. This guideline establishes a basic standard of practice and outlines the role of the psychiatrist when responding to a referral request for a report, along with best practice in conducting independent medical examinations, report writing and adherence to appropriate professional standards.
SIRA advises the regulated fees for medico-legal services provided in the workers compensation and motor accidents schemes will not be indexed from the 2020 fees.
Any services carried out by medico-legal assessors will therefore continue to be billed at the rates outlined in the tables published in April 2020
The concept of separating out impairment into impairment that is secondary to physical injury and impairment that is not secondary to physical injury was introduced into Victorian legislation in November 1996. It is now almost 24 years later. It seemed timely for me to discuss the history of this development. It is now taken for granted but caused some years of turmoil. It is a concept that has been incorporated into most states and territories. It was developed for only one reason, to prevent a financial blowout and, as I have said previously “it is a medical fiction but a legal fact!”. Whilst doing research for this paper I came across “To Strike a Balance A History of Victoria’s Workers’ Compensation Scheme 1985-2010” by Marianna Styliannou that I have found very helpful. You can read it here. When I have completed this paper I will put it on the website.
The Judicial College of Victoria provides guidance for Judges in Victoria, it describes itself as ‘ a trusted place where the judiciary come to share knowledge, wisdom and expertise.’
The home page provides information about various manuals including a civil procedures book. Interesting information on expert witnesses http://www.judicialcollege.vic.edu.au/eManuals/Civil/index.htm#44187.htm. for example:
The Act gives courts the power to give any direction considered appropriate in respect of experts giving evidence at trial (s65K(1)).
Such directions may include directing an expert witness to:
give evidence at any stage of a trial, including after all factual evidence has been adduced on behalf of all parties
give evidence concurrently with one or more other expert witnesses
give an oral exposition of their opinion on any issue
give their opinion of an opinion given by other expert witnesses
be examined, cross-examined or re-examined in a particular manner or sequence, including by putting to each expert witness, in turn, each issue relevant to one matter or issue at a time
be permitted to ask questions of any other expert witness who is concurrently giving evidence (s65K(2)).
The court may question an expert witness in order to identify the real issues in dispute between two or more expert witnesses. This includes questioning more than one expert witness simultaneously (s65K(3)).
Another resource is a manual on serious injury http://www.judicialcollege.vic.edu.au/eManuals/SIM/index.htm
Check it out.
What, you may ask, is ISCRR, it is the ‘Institute for Safety, Compensation and Recovery Research’. Sounds good, intially a joint venture of the WorkSafe authority, the University of Melbourne and Monash University. For years I had been advocating for a University based organization to do research in this area. Then ISCRR emerged, incidentally you think they could have come up with a catchier tile, eg RRISC but no, even now I have to look it up to see what the initials stand for. The University of Melbourne dumped it last year. I have been uniformly disappointed at the quality of the research and the research topics chosen. The ISCRR newsletter highlights their achievements. here is a sample
Cumulative exposure to trauma at work
Due to the COVID-19 restrictions, the incidence and severity of domestic violence has increased. This has resulted in overwhelming workloads and potential burn-out for frontline counsellors. Repeated exposure to traumatic events in the course of one’s work is known as Work-Related Cumulative Trauma. It’s a risk factor for poor mental health, and domestic violence counsellors are just one of the many affected professions. ISCRR was approached by WorkSafe to conduct two evidence reviews for State Government Departments examining:
The prevalence and impact of vicarious trauma in the workplace
Strategies to address the impact of repeated exposure to work-related trauma, both direct and indirect.
ISCRR identified the workplace-based strategies and interventions that influence the psychosocial work environment, using either a proactive, ameliorative or reactive approach to reducing the risk of exposure to the stressors that lead to cumulative trauma.
That’s it folks, somehow domestic violence became linked in. The researchers tell us that they identified workplace strategies and interventions but don’t tell us what they are or how to access them, why bother? Another waste of paper.
I have written a paper about civil liability claims and psychiatric assessment. Click here to read the document. The paper refers to provisions of the Victorian Wrongs Act but has some applicability to all the civil liability acts in Australia. They have common features.
The difference in Victoria and New South Wales is that claims can only proceed if there is a significant injury. In general significant psychiatric injury in Victoria is injury with an impairment of 10% or more that is not secondary or consequential to physical injury using the GEPIC. Similar provisions apply in New South Wales but the threshold is 15% or more using the PIRS.
Psychiatrists assess three main types of claims. These include falls and trips, childhood sexual abuse claims and medical negligence in all its ramifications. Most claims do not require psychiatrists to comment on liability.
In Victoria and New South Wales psychiatrists are asked to decide whether or not the claimant has reached or exceeded the threshold (thus allowing the claim to proceed) and also comment on the diagnosis and treatment requirements with an estimated cost of these requirements.
Psychiatrists are only asked to comment on liability with regard to issues arising from psychiatric or psychological treatment including psychiatric hospitalisation.
There are particular issues with each of these types of claims that are briefly discussed in the presentation.
It is hard to fathom how devastating Covid 19 has been to the world. I am now working from home and apart from Zoom meetings with colleagues, playing golf weekly and visiting my office I am otherwise at home. It is difficult to grasp how severe and rapid the changes have been for us all meaning all the world.
I have been working from home since late March and have slowly learned to use the new technology. Although I miss the routine of working in the office, going to my city office and to meetings and so forth nevertheless there have been surprising benefits. One of these is that I have found the people I interviewed seem much more relaxed when they are being interviewed remotely in their own home. There have been some odd situations, I was interviewing a woman who had just come off night shift. She was in her studio apartment lying on the bed and fell asleep! Another fellow lived in the country and had to drive to the top of the hill to get a signal so he could talk to me. A young woman was on a bus at the time of the interview and was quite keen for the interview to proceed whilst on the bus with people nearby. Apart from those instances it has otherwise been relatively uneventful although there have been signal dropouts and people having trouble connecting via Zoom.
I have been having more Zoom recently and have become more proficient. I still use FaceTime, Duo and WhatsApp and sometimes Skype. I have had two video conferences using Microsoft Team. Others have praised a number of other remote conferencing technologies but I am satisfied with what I have.
I have purchased an excellent combined camera and microphone for my monitor that is very effective. Since the NBN connection has been made the signal has been generally very good. I have learned to use different backgrounds with Zoom interviews although some of the backgrounds would be regarded as inappropriate, such as the interior of St Peter’s Basilica, a swimming pool and me doing a tango!
I have been having peer-review meetings via Zoom and have been surprised that so many psychiatrists have been working face-to-face during the Covid 19 lockdown. I just did a webinar on The Art of the Expert Witness and I have placed that on the website.
This experience has made me review my practice. I am now considering remotely interviewing claimants who live in the country or interstate rather than them having to go through all the hassle of getting to see me, being interviewed and going home which may take them a day or so. Of course this has to be with the agreement of the referrer.
Although I look forward to a return to “normality”, including overseas travel, this seems unlikely in the short term and I expect that when we get back to normal we will look back on this time with some nostalgia.
Some of the issues raised by the Victorian Ombudsman are dealt with in the NSW fee schedule such as definitions of complexity. i continue to argue that the WorkSafe view that any medico can do IME work with out training in assessment and report writing is fatally flawed. Note that there is an induction process but it assumes competencies in the areas I have mentioned. Also not the fees in NSW and those in Victoria even with a 25% increase in April 2019 (because they could not attract enough psychiatrists to do the work?)
The Report of the Victorian Ombudsman-Worksafe 2: Follow-Up Investigation into the Management of Complex Workers Compensation Claims
This report is a follow-up investigation to the initial report published in 2016 and the further report in 2019. In particular I have focussed on the section entitled:
Oversight of the IME System (page 189)
This section discusses appointments of IMEs, feedback regarding the new selection criteria, quality assurance issues and changes since the 2016 investigation.
I think there is a fundamental lack of understanding by WorkSafe that the skill set required of an IME is additional to the generic skills of medical specialists and general practitioners. The assumption is that without additional training IMEs can perform the tasks required leads to inadequate reports and an apparent vacuum with regard to measures to improve quality.
The assumption made by WorkSafe is that their selection criteria, induction and service standards are adequate. These include:
The successful applicants must then participate in an induction process that includes:
The IME service standards state that reports should:
An adequate course of training should equip prospective IMEs with the skill set to do the work required. Such a training program should include a didactic course, mentoring and the opportunity for further training as required.
The importance of training is both with regard to new IMEs being able to function effectively in that role from the beginning but it also provides an avenue by which IMEs whose reports are thought to be problematic can be provided with further assistance to improve their level of skills.
Many prospective IMEs accept that such a training program would need to be self-funded.
IME work is a subspecialty that would involve generic training and training for particular craft groups..
The RACS does provide IME training but no other medical colleges do so. Most IMEs have to learn” on the job”.
Effective IME raining should include:
No IMEs are required to be trained in doing assessments yet all IMEs are required to attend impairment assessment training. This is a case of the tail wagging the dog.
These comments should be considered in the context of my assessment of Recommendations 13 and 14:
Recommendation 13
Provide different time allocations for independent medical examinations of injured workers with “complex claims” and remunerate IMEs for these accordingly.
The definition of a complex claim according to this report is:
A claim involving workers who are unable to work long-term and/or require long-term medical treatment.
Many of these involve chronic back problems and/or mental health issues. Psychiatrist IMEs assessed many claimants with the issues described in this definition.
At the moment Item PCT100 is the only item available for a first examination and report by a psychiatrist. This is the standard fee for all reports no matter the degree of complexity. The AMA anticipates a new fee schedule from WorkSafe. However the current fee schedule contains the following instruction:
Loadings additional to examination and report fee are subject to prior written approval from the WorkSafe Agent.
However sometimes complexity does not emerge until the interview is underway. This requirement does not allow for the emergence of complexity during the interview and should not be included in connection with the proposed fee. By contrast the Transport Accident Commission fee schedule allows for a fee range depending on the level of complexity of the claim. The AMA strongly urges that such a fee range be introduced.
In addition to issues with regard to an ability to work long-term and long-term medical treatment complexity is likely to be indicated by the amount of documentation. It is likely that more than 200 pages of documentation indicates that this is probably a complex claim. It is also likely that an interview using the services of an interpreter will extend the interview time significantly. This is not catered for by this fee schedule.
Feedback from IME psychiatrists is that although the fee increase is helpful it remains rigid and the fee level are still below that of most other states. See NSW SIRA WorkCover fee schedules for 2020 and definitions of a complex claim.
Recommendation 14 (page 227)
Provide guidance and/or training to IMEs regarding:
I think that Recommendation 14 should be reworded as follows:
Recommendation 14 (amended)
Accredit suitable training courses in conjunction with the relevant medical colleges.
Current IMEs should be “grandfathered” but encouraged to participate in such courses.
New IMEs should undertake training as part of their induction to become IMEs
Such training courses should provide for retraining for IMEs about whom concerns have been expressed.
Such training courses should have flexibility to respond to particular concerns including:
Surveillance material such as videos should be seen together with the claimant to provide the claimant with an opportunity to explain the behaviour observed and to confirm that the person in the video is the claimant. It is considered that for an IME to change their opinion on the basis of surveillance material without providing the claimant to comment is unfair.
Other Issues
There are other issues in this document that are of concern. The report notes that in paragraph 615:
Worksafe notes that it did undertake significant external consultation including through the IME Clinical Reference Group, a presentation to the AMA WorkCover/TAC committee, the establishment of a working group with representatives from the College of Surgeons and consultation with various medical faculties and peak bodies in relation to the IME criteria.
The AMA WorkCover/TAC committee were told the issue of a minimum of eight hours “direct clinical care each week” would not be discussed and there was a presentation with little discussion and certainly no agreement.
I also have concerns about this requirement as it seemed to ignore that all colleges have compulsory Continuing Professional Development that is required annually for medical practitioners to retain their registration with AHPRA. It is thought that the process of successful completion of CPD annually is a much more effective tool for determining ongoing clinical competence rather than a minimum of eight hours direct clinical care each week as this, in and of itself, does not imply competence.
Complexity
The ombudsman’s report is a “Follow-Up Investigation into the Management of Complex Workers Compensation Claims”.
Complex workers compensation claims, by definition are – complex!
Complex claims are usually associated with more documentation and an extended interview time. This is particularly the case with regard to complex claims involving alleged mental health issues. See NSW definitions below.
In paragraph 689 WorkSafe wrote:
…in April 2019, WorkSafe increased the fee for psychiatric IMEs by 25% and made other changes to the fee structure such as providing a higher fee if there were more than 20 pages of reading material.
This is the current WorkSafe fee schedule for psychiatrists compare this with the NSW schedule for 2020..
| Item number | Service description | Fee | GST | Total (inc GST) |
| PCT100 | First examination and report – Inclusive of conducting the examination, report writing, reading time and any incidentals (such as postage, photography and faxing services). – Diagnostic tests (such as x-rays) carried out as a necessary part of the examination are not included in the first examination and report item code and will be reimbursed in accordance with WorkSafe policies, the relevant Medicare Benefit Schedule item code and the WorkSafe’s Reimbursement Rates for Medical Practitioners. |
$1,131.02 | $113.10 | $1,244.12 |
| PCT150 | Subsequent examination and report – Applies where a WorkSafe Agent requests a report within 12 months of the first examination and report for the same claim. |
$678.61 | $67.86 | $746.47 |
Psychiatrist – Loadings additional to examination and report fee are subject to prior written approval from the WorkSafe Agent.
| Item number | Service description | Fee | GST | Total (inc GST) |
| PCT200 | Report reading – Flat rate for reading of all reports that accumulatively are greater than 20 pages. – This fee is payable once only per claim per WorkSafe Agent report request. |
$49.72 | $4.97 | $54.69 |
| PCT201 | Report reading – Flat rate for reading of all reports 101 – 200 pages – This fee is payable once only per claim per WorkSafe Agent report request. |
$124.29 | $12.43 | $136.72 |
| PCT202 | Report reading – Flat rate for reading of all reports 201+ pages – This fee is payable once only per claim per WorkSafe Agent report request. |
$207.15 | $20.72 | $227.87 |
The NSW definitions and fee schedule for 2020 illustrate the difference in dealing with complexity.
NSW Workplace Injury Management and Workers Compensation (Medical Examinations and Reports Fees) Order 2020
Definition
MS008 or WIS008 Examination and report – psychiatric $1,426.40
IMS308 or WIS308 Video examination and report – psychiatric $1,426.40
IMS081 or WIS081 Examination conducted with the assistance of an interpreter and report – psychiatric $1,785.60
IMS381 or WIS381 Video examination conducted with the assistance of an interpreter and report – psychiatric $1,785.60
IMS092 or WIS092 Cancellation with 2 working days notice or less, worker or interpreter fails to attend the scheduled appointment/join the video appointment, or the worker or interpreter attends the appointment/joins the video appointment unreasonably late preventing a full examination being conducted. $408.90
For some time I have been confused by the use and misuse of the term “mental health”.
Most recently the Black Dog Institute has claimed that “almost 4 in 5 participants (of a survey of 5000 people) reported that since the (Covid 19) outbreak their mental health had worsened with over half (55%) saying it had worsened a little, and almost a quarter (23%) saying it had worsened a lot”… “Many people are experiencing high levels of uncertainty about the future (80%), and half reported moderate to extreme loneliness and worry about their financial situation. Given loneliness, social isolation, and financial stress or significant risk factors for mental and physical health, and risk factors for suicidal ideation, these findings are concerning.”
For years we have been told that 20% of the population have serious mental health issues. The notion being more resources should be spent on mental health. My concern is more about the 3% of people with a serious mental illness. This is the group that is severely disadvantaged, this is the group that has difficulty accessing treatment, this is the group that is stigmatised, this is the group that have major problems with quality-of-life. Too often mental health issues are conflated with serious mental illness both overstating the problems and resources required for those with mental health issues and understating the resources required for people with serious mental illness.
Andrew Fleming, the creator of Financial Mindfulness (a private start-up), has produced an app that is said to support the mental health of those in financial stress. He is quoted as saying that as the health threat of Covid 19 dissipates, anxiety over finances will remain potentially worsen. “Now the curve has flattened on new infections, another set of indicators are already in a dangerous upswing that seems certain to cause damaging financial stress long after the viruses sustained spikes in unemployment, mortgage stress, rent arrears, credit card and other debts,” he said…. “Financial stress, from uncertainty and reducing income could be the most serious enduring impacts of the global crisis”. This should be good for his bottom line.
Ian Hickie, Patrick McGorry and the AMA President have issued a joint statement that mental health problems triggered by Covid 19 would claim more lives than the virus itself. “Modelling suggests the pandemic may give rise to 25% more suicides, with up to 30% of those aged 15-25 years.”
Accordingly they call for:
I have been unable to access the modelling discussed in this release.
Interesting studies with regard to suicide include:
Suicide Life Threat Behav. 1992 Summer;22(2):240-54.
The impact of epidemic, war, prohibition and media on suicide: United States, 1910-1920. Wasserman IM1.
The paper utilizes a natural experiment approach to estimate the impact of exogenous social and political events on suicide behavior in the United States between 1910 and 1920. The study is concerned with determining the impact of World War I, the great Influenza Epidemic, and the prohibition experiment on suicide. Estimating the monthly population in the United States registration area from 1910 to 1920, monthly suicide and mortality rates are computed. A time-series model is postulated, and second-order autoregressive estimates are used to determine the impact of the independent variables in the model. It is concluded that World War I did not influence suicide; the Great Influenza Epidemic caused it to increase; and the continuing decline in alcohol consumption between 1910 and 1920 depressed national suicide rates.
Life and death during the Great Depression José A. Tapia Granados and Ana V. Diez Roux
Proceedings of the National Academy of Sciences PNAS October 13, 2009 106 (41) 17290-17295; https://doi.org/10.1073/pnas.0904491106
Recent events highlight the importance of examining the impact of economic downturns on population health. The Great Depression of the 1930s was the most important economic downturn in the U.S. in the twentieth century. We used historical life expectancy and mortality data to examine associations of economic growth with population health for the period 1920–1940. We conducted descriptive analyses of trends and examined associations between annual changes in health indicators and annual changes in economic activity using correlations and regression models. Population health did not decline and indeed generally improved during the 4 years of the Great Depression, 1930–1933, with mortality decreasing for almost all ages, and life expectancy increasing by several years in males, females, whites, and nonwhites. For most age groups, mortality tended to peak during years of strong economic expansion (such as 1923, 1926, 1929, and 1936–1937). In contrast, the recessions of 1921, 1930–1933, and 1938 coincided with declines in mortality and gains in life expectancy. The only exception was suicide mortality which increased during the Great Depression, but accounted for less than 2% of deaths. Correlation and regression analyses confirmed a significant negative effect of economic expansions on health gains. The evolution of population health during the years 1920–1940 confirms the counterintuitive hypothesis that, as in other historical periods and market economies, population health tends to evolve better during recessions than in expansions.(my emphasis)
Ian Hickie is reported as saying that “the most conservative estimate is that at least 10% of lost productivity is due to mental ill-health and suicide. It is likely that the real cost is twice that amount. Not only does the economic downturn because mental ill-health, but that ill-health feedback into long-term loss of productivity”.
It is unclear why he has conflated “mental ill health and suicide”. We know that the suicide rate is between 11-13 people per 100, 000, 3,046 in 2018. As far as productivity is concerned this is a qualitative analysis and I believe it to be dubious.
This seems to be significant over-reach.
The Black Dog Institute report appears to be a blinding glimpse of the obvious. Of course people are worried about their future in this current situation. Of course people are lonely because of the social distancing and isolation, however people have always had concerns about uncertain employment, debt, physical health issues, relationship problems etc.
My concern is our tendency to pathologise normal behaviour with the implication that such behaviour requires intervention, this is not to deny that at times we all need support, advice.
When I worked with kids I found that they fell into 3 groups, those who were made of rubber and coped with adversity, those who are made of putty and were dented but remained intact and those who are made of glass who shattered. This rough demarcation holds true with adults. Most people cope with adversity without needing to see their GP or using mental health services.
My concern is also that mental health researchers tend to be catastrophists, and with the best intentions, use these widespread disruptions as a reason to boost their influence, and not least, their funding.
An example is the push for increased funding for domestic violence services by “researchers” with the expectation that isolation and social distancing will lead to an increase in domestic violence. According to report in the Australian (11 May 2020) “Fewer people in New South Wales are being murdered or reporting assault partner or family members despite strict social distancing measures that experts feared would fuel violence at home. New South Wales Police Force Data shows 2194 domestic violence -related assault recorded in April, compared to 2408 in the same month last year. the number of people killed by intimate partners or a family member plunged by more than 60% in New South Wales to 4 in the year to May 4 compared to 11 over the same period last year.
The same researchers respond by saying “it is possible domestic violence figures had remained stable because isolation and effective her willingness or ability of victim to seek assistance from police. Peak body Women’s Safety NSW said the Covid 19 lock down had contributed to a 10% increase in the number of domestic and family violence victims seeking assistance since March. So there has been a 10% increase in those seeking assistance but a decline of 9.1% in those contacting the Police?
To go back to my concern about the use and misuse of the term “Mental Health”, some clarity came from a paper in the Journal of the World Psychiatric Association entitled:
Toward a New Definition of Mental Health (World Psychiatry. 2015 Jun; 14(2): 231–233)
According to the World Health Organization (WHO), mental health is “a state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community”.
This definition, while representing a substantial progress with respect to moving away from the conceptualization of mental health as a state of absence of mental illness, raises several concerns and lends itself to potential misunderstandings when it identifies positive feelings and positive functioning as key factors for mental health.
In fact, regarding well-being as a key aspect of mental health is difficult to reconcile with the many challenging life situations in which well-being may even be unhealthy: most people would consider as mentally unhealthy an individual experiencing a state of well-being while killing several persons during a war action, and would regard as healthy a person feeling desperate after being fired from his/her job in a situation in which occupational opportunities are scarce.
People in good mental health are often sad, unwell, angry or unhappy, and this is part of a fully lived life for a human being. (my emphasis).
In spite of this, mental health has been often conceptualized as a purely positive affect, marked by feelings of happiness and sense of mastery over the environment.
Concepts used in several papers on mental health include both key aspects of the WHO definition, i.e. positive emotions and positive functioning. Keyes identifies three components of mental health: emotional well-being, psychological well-being and social well-being. Emotional well-being includes happiness, interest in life, and satisfaction; psychological well-being includes liking most parts of one’s own personality, being good at managing the responsibilities of daily life, having good relationships with others, and being satisfied with one’s own life; social well-being refers to positive functioning and involves having something to contribute to society (social contribution), feeling part of a community (social integration), believing that society is becoming a better place for all people (social actualization), and that the way society works makes sense to them (social coherence).
However, such a perspective of mental health, influenced by hedonic and eudaimonic (Eudaimonia, sometimes anglicized as eudaemonia or eudemonia, is a Greek word commonly translated as happiness or welfare; however, “human flourishing or prosperity” and “blessedness” have been proposed as more accurate translations.)
Traditions, which champion positive emotions and excellence in functioning, respectively, risks excluding most adolescents, many of whom are somewhat shy, those who fight against perceived injustice and inequalities or are discouraged from doing so after years of useless efforts, as well as migrants and minorities experiencing rejection and discrimination.
My point being that both the misuse of of the term ‘mental health’ and the catastrophising of well-meaning ‘experts’ with ‘skin in the game’” so to speak. I suspect their modelling vastly overstates the problem and ignores most people’s ability to cope. I am always dubious when mental health services claim to be the solution for social ills such as poverty, poor housing, unmployment and so forth. However, i may be wrong.