I attended the CRASH Seminar in Adelaide as a guest speaker talking about the GEPIC, the system of psychiatric impairment we use in Victoria. As you may know the system has been adopted in South Australia for motor accident claims. South Australia has a compulsory third party scheme, a common-law scheme, with a no fault component bolted on. By contrast the system in Victoria is a no fault scheme with a common-law scheme bolted on.
South Australia is using AMA 5 but the percentages from AMA 5 have been grafted on to the system used in Queensland where there are INJURY SCALE VALUES. What that means is that depending on the nature of the injury a percentage impairment leads to a certain ISV number (or range of numbers) and on the basis of that a tribunal, quite separate from the medical profession determines the lump sum payment. For those familiar with the GEPIC, the person has to be in medium class III (25-50% leading to an ISV of 7 or more) to gain any benefits.
There was concern about disadvantage for those with psychiatric injury in the South Australia WorkCover system where there is no entitlement to lump sum payment. I mentioned that it would be useful if South Australia had the same method of psychiatric impairment for both motor accidents and WorkCover claims.
In general there were no negative comments about the GEPIC, probably because nobody knows how it will work. I think the underlying issue is the belief that the system has become much more Draconian and more people will be excluded from receiving benefits. This is not the fault of the GEPIC or indeed any other method of impairment assessment.
South Australia has a Lifetime Supporter Authority that is intended to cover people with catastrophic motor vehicle accidents in South Australia regardless of fault. There is a Lifetime Support Scheme Fund paid for by a levy on motorists.
It was very interesting to talk to people who have been trying to establish the system. Of course the devil is in the details and the details are in the regulations. A committee has been established to determine all these issues consisting of representatives of the law Institute, the AMA, the Motor Accident Commission and a representative of the responsible Minister, the Attorney General. It is interesting to see where this will all end up.
It appears that training for the GEPIC will take place in May or June.
I was surprised by the lively atmosphere of Adelaide. There seem to be so many restaurants and bars, a number of narrow streets like Melbourne’s laneways that were filled with customers. Many of the older buildings were built in that beautiful Adelaide sandstone. The weather was great, it was a pleasure to be there.
There have been significant changes or potential changes in workers compensation in 5 states, I have summarised the changes here.
Queensland: Injury threshold introduced and other changes. The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (Qld) has been discussed in a previous blog.
Victoria’s new Act consolidates previous workers compensation Acts, as from 1 July 2014 WorkSafe goes, the new entity is , surprise, the Victorian WorkCover Authority!
In Western Australia feedback is being sought on a proposal to repeal Western Australia’s workers compensation laws and replace them with a more ‘user-friendly’ Act that includes a new ‘worker’ definition to help employers determine with greater ease whether a worker is covered by the scheme. According to WorkCover WA, a significant number of amendments to the Workers Compensation and Injury Management Act 1981 over the last three decades have resulted in a ‘complex and highly prescriptive statute which is difficult to understand and apply’.
A discussion paper has been released, based on an internal review of the Act and includes proposal to enhance readability and consistency in the legislation.
South Australia WorkCover has been decommissioned. The State Attorney-General and Industrial Relations Minister said, in relation to SA Workcover: ‘It’s been amended, patched over and fiddled with for years and in the process has become so disliked, the only thing to do is to rub it out and start again.’ Workcover SA has an unfunded liability of well over $1b.
New South Wales Lump sum law changes. NSW legislation has attempted to restrict lump sums, by imposing a 10 per cent whole-person-impairment threshold on claims, this will be decided by the High Court.
In November 2013 the Victorian Competition and Efficiency Commission published a draft report with recommendations following its inquiry into aspects of the Wrongs Act 1958. I have taken excerpts from this that are relevant to psychiatrists. See full report
The Commission report stated that to ‘address anomalies, inequities and inconsistencies in the limitations on damages for personal injury and death, that the Victorian Government amend the Wrongs Act 1958 (Vic) to:
WorkCover Changes Queensland – as from October 2013 – Edited for Psychiatrists
These changes are effective from 15 October 2013 and arose from some of the recommendations of the Parliamentary Inquiry into Inquiry into the Operation of Queensland’s Workers’ Compensation Scheme:
The introduction of a threshold of greater than 5% degree of permanent impairment (DPI) to access common law damages. This applies to injuries from 15 October 2013. For injuries that occur over a period of time, the date of injury is considered to be the date of initial health practitioner consultation for the injury.
Prior to these legislative changes there was no threshold.
WorkCover Qld are working with the Office of Fair and Safe Work Queensland (OFSWQ) – the Regulator – to develop training for doctors on the new Guide and updating Notice of Assessment forms. The Regulator will publish the GEPI in the Queensland Government Gazette.
These changes are effective from 29 October 2013:
• Employment to be ‘the major significant contributing factor’ for psychological or psychiatric claims.
For physical injuries the definition remains unchanged stating ‘Employment to be ‘a major significant contributing factor’ for psychological or psychiatric claims’. Note the term ‘ the major significant contributing factor’, this is a much mpre stringemt test than a major significant contributing factor.
The committee recommendation was: The Committee recommends that the current definition of injury be retained in its current form with the exception of psychological injuries which are addressed separately in section 4.4.
• Employers can request a prospective worker to provide them with information about pre-existing injuries or medical conditions.
Disclosure of pre-existing conditions applies to ‘employment processes’ from 29 October 2013. An employer may ask a prospective worker in writing about pre-existing injuries or medical conditions. The request must be accompanied by specific information about the future duties and the implications if the worker fails to properly disclose their conditions. A worker may not be entitled to compensation or damages if they have knowingly made a false or misleading disclosure about an injury or condition and they suffer an aggravation of that injury or condition.
This provision is going to make it more difficult for people with any mental health problems to gain employment.
Bear in mind the reasons for these legislative changes:
The objectives of the Act are:
1. To implement the Queensland Government’s response to the Finance and Administration Parliamentary
Committee’s report on its inquiry into the operation of Queensland’s workers’ compensation scheme.
2. To make changes to the basis for assessment of impairment and to align the method between the statutory and common law provisions of the scheme.
It is a continuing struggle to make sure that people who experience a psychological injury are treated in a similar way to those who have a physical injury. The battle has already been lost in New Zealand to some extent. It was salutary reading the report of the Inquiry into the Operation of Queensland’s Workers’ Compensation Scheme published in May 2013. I have posted an edited version of this Report in “publications”. The Inquiry Report describes in some detail two particular issues, bullying and people making “stress claims” when they are faced with managerial action that they do not like. The paper is worth reading to see what the various participants have submitted. In particular there is a recommendation that the definition of psychological injuries be amended to include two types of psychological injuries identified as category A and B, the Committee is effectively recommending that criterion A for post traumatic stress disorder be category A and the rest be category B requiring a high level of proof for acceptance of such a claim! (see recommendation 11).
I have also extracted from this Report a table describing the Exclusionary Provisions for Psychological Injuries in the Commonwealth, States and Territories and New Zealand, WorkSafe Australia 2012
The recommendations are as follows:
Recommendation 10
The Committee recommends that psychological injuries be included under separate provisions within
the legislation.
Recommendation 11
The Committee recommends that the definition of psychological injuries be amended to include the
two types of psychological injury identified as category A and B above in section 4.5.
Section 4.5 The Committee considers that psychological injuries can be defined as two types:
A. Where a psychological injury is attested to by medical evidence and it results from an event
or series of events that deliver such significant trauma that it would reasonably be expected
it would impact adversely in the short, medium and long term on a significant proportion or
the majority of the population were they exposed to such significant events.
Examples of such events would include serious work related assault occasioning bodily harm
and in particular residual physical disability. Other events, that if supported by medical
evidence of ongoing psychological injury, may include people exposed to severe physical
threat such as hold-up, work place invasion such as robberies or where workers are exposed
to victims of road and rail incidents in the course of their employment.
B. All claims other than those identified above. This would include claims such as workplace
harassment and those types of claims where it is anticipated it would only produce a lasting
psychological injury to people whose pre-existing psyche is vulnerable. This type of claim is
more difficult to assess because the events around them are likely to be influenced by nonwork
psychological stresses, pre-existing psychological issues such as substance abuse, preexisting
depression, personality disorder, bipolar disorder etc.
The Committee considers that the level of proof required for acceptance of a claim under
the second type of claim should be quite high.
Recommendation 12
The Committee recommends that the current exclusions for reasonable management action be
removed and be replaced with specific exceptions for normal work place practices such as:
a) where action is taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
provided that action is taken in a reasonable way;
b) where a decision is made not to award or provide promotion, reclassification or transfer of, or
leave of absence or benefit in connection with, the worker’s employment provided the decision is
made in a reasonable way;
c) action by the Authority or an insurer in connection with the worker’s application for
compensation.
AND the definition be amended to be ‘the major significant contributing factor’ rather than the
current ‘a major significant contributing factor’ for Category B type psychological injury claims.
Recommendation 13
The Committee recommends that the Queensland Mental Health Commission be directed to
undertake a research study regarding the impact of the legislative changes if they are adopted and
that this study must directly inform the next review of the Workers’ Compensation Act.
Recommendation 14
The Committee recommends that the Attorney-General should initiate a review of the Work Health
and Safety Act 2011 with a view to considering whether recompense to victims of workplace bullying
could be made through mechanisms in that Act rather than through the Workers’ Compensation
Scheme.
Recommendation 23
The Committee recommends that a psychological specialty medical assessment tribunal be
included on the list of specialty medical assessment tribunals