In this section, you will find important media coverage oabout workcover victims (injured workers) and workers compensation issues in Australia.
Workcover- General news
- Cross border workers compensation claims in NSW and Queensland – laws of which state apply? Which case won? – Mondaq News AlertsCross border workers compensation claims in NSW and Queensland – laws of which state apply? Which case won? Mondaq News Alerts
- Outfoxed? Workers compensation appeals Mondaq News Alerts
- Jockey sues Mick Price Racing, MRC after career-ending fall The Age
- Worker seeking compensation for desk stress has appeal thrown out Sydney Morning Herald
- Injured Kelowna worker alleges WorkSafeBC employee made racial remark Global News
- Brave truckie fights for fairer workers compensation deal Big Rigs
- Sharp decline in rate of injured employees returning to work, review finds The Age
- Return to work paths built on various tools and supports Daily Commercial News
1.Vic Ombudsman investigation into workcover VIC insurers
In 2015, the Victorian Ombudsman undertook an investigation “into the management of complex workers compensation claims and WorkSafe oversight”. The Ombudsman’s report was published in 2016, and the Ombudsman is currently undertaking a follow-up investigation.
1.2.Why did the Ombudsman investigate WorkSafe Victoria?
The workers’ compensation scheme is an important safety net that provides medical and financial support to those who are injured at work. The scheme is administered by private insurance agents (WorkCover agents) and overseen by the Victorian statutory authority, WorkSafe.Although the Ombudsman has jurisdiction to investigate complaints about workers compensation, the Ombudsman office had in the past generally advised WorkCover claimants to dispute decisions about their claim at conciliation. The Accident Compensation Conciliation Service (ACCS) was established for the specific purpose of dealing with such disputes. Despite this option, the office of the Ombudsman continued to receive a significant number of complaints about the claims process, individual claim decisions and issues with payments. On closer examination of the complaints, the Ombudsman found multiple accounts of injured workers being put through unreasonable and unnecessary processes in order to continue receiving payments and other entitlements and having claims terminated despite still being unable to work. In September 2015, the Ombudsman decided to investigate the management of the small proportion of complex claims which represent approximately 20 per cent of new claims, but 90 per cent of the scheme’s liabilities.
1.3.What did the Ombudsman find during the investigation of WorkSafe Victoria?
Part of the Ombudsman investigation examined decisions of the five WorkCover agents responsible for administering the workers’ compensation scheme at the time of the investigation, as well as WorkSafe’s oversight of WorkCover agents’ decisions.
The Ombudsman found many instances of good administrative decision making by some staff. However, the Ombudsman investigation also revealed poor behaviour by all five WorkCover agents when it came to complex claims. The Ombudsman found numerous examples of WorkCover agents failing to adhere to requirements, including:
- selectively using evidence to support a decision to reject or terminate a claim, while disregarding evidence that did not support the decision
- preferentially engaging Independent Medical Examiners (IMEs) that were known to more likely hold an opinion adverse to the worker, as well as WorkCover agents ‘shopping’ for IMEs that would return a desirable assessment
- maintaining unreasonable decisions at conciliation, only to have the decision change or overturned at conciliation or court
- making decisions that were contrary to binding Medical Panel decisions.
The prevalence of unreasonable decision making when it came to complex claims strongly suggested that a culture of claim rejection and termination was being driven by financial incentives and penalties. This was further evidenced by an emphasis in WorkCover agents’ internal documents on terminating claims and the timing of termination decisions that aligned with financial reward measures. It was clear that the scheme’s incentives needed to be recalibrated. It was also evident that WorkSafe’s oversight of the scheme needed to directly target the management of complex, disputed claims and put in place the necessary systems to support its oversight of complex claims.
1.4.What happened since the Ombudsman investigation into WorkCover Victoria?
The Ombudsman received overwhelming support for my report and recommendations from claimants, treating medical professionals, members of the public and the State Government.
Since the Ombudsman report, WorkSafe has implemented all of her 15 recommendations directed to it. This has included adjusting the way in which WorkCover agents are rewarded; improving the prominence of information about making complaints; and reforming the way in which Independent Medical Examiners are selected and oversighted.
Complaints about WorkCover agents and WorkSafe have, however, continued since her report was tabled.
Given the magnitude of the changes being made by WorkSafe, the ombudsman recognises that it will take time for the effect of the changes made to the system to be fully felt. However, as she continues to receive complaints about the same issues highlighted in her report, on 7 June 2018, Ithe Ombudsman announced that she had commenced a follow-up investigation.
1.5.Status of the Ombudsman recommendations to the Government and WorkSafe
You can read up on the status of the recommendations here (PDF).
2. Ombudsman VIC Follow up report into Workcover December 2019
“Immoral and unethical”: WorkCover needs wholesale change to restore fairness for long term injured workers – Ombudsman
Victoria’s WorkCover scheme is failing to deliver just outcomes for long term injured workers, inflicting a huge emotional toll on them, their families and wider society, Victorian Ombudsman Deborah Glass has found.
Ms Glass said WorkSafe agents – five commercial bodies who manage WorkCover claims on behalf of WorkSafe – are continuing to make unreasonable decisions, in some cases for financial incentives.
“The system is failing to deliver just outcomes to too many people. WorkSafe agents continue to make unreasonable decisions, the dispute process can be time-consuming, stressful and costly, and WorkSafe is too often unwilling or unable to deal,” Ms Glass said.
Revisiting an issue she first investigated in 2016, Ms Glass has today tabled in the Victorian Parliament her 18-month long WorkSafe 2: Follow-up investigation into the management of complex workers compensation claims.
“I said in 2016 these cases involve people’s lives, and the human cost should never be forgotten; that human cost continues to this day,” Ms Glass said.
“From the evidence in this report, it would appear that my 2016 investigation only scratched the surface. Many of the decisions and actions we saw were not only unjust and wrong. Some were downright immoral and unethical.”
Her investigation found evidence of agents:
- selectively using evidence to terminate a worker’s entitlements, even where the medical opinion relied on was unclear, contradictory or inconclusive
- conducting surveillance of workers without adequate, or any, evidence they were misrepresenting their injury
- requiring workers to attend occupational rehabilitation at inappropriate stages of their recoveries, and then issuing the workers with non-compliance notices if they failed to attend.
Ms Glass found that WorkSafe had failed to hold agents accountable for poor decisions, shirking from requiring agents to overturn decisions that had failed its own audits.
She said while her 2016 investigation had resulted in some improvements, it also appeared to have driven some practices underground.
“Agent staff were told to be careful what they put in writing – in case the Ombudsman sees it. Staff were advised to use words like ‘entitlement reviews’ in their emails rather than ‘termination’,” she said. “But while this meant less overt evidence of decisions being made for financial incentives, this was the only logical explanation for some of them: agents who came to conciliation not prepared to conciliate beyond a derisory sum; maintaining those decisions knowing they would be overturned by a court, on the basis that many workers would simply give up.
“The financial viability of the scheme is imperative, but the balance between financial sustainability and fairness for injured workers has tilted too far away from the latter.” Ms Glass said. “It is time for the change that makes a difference, and I welcome the government’s acceptance of this.”
Ms Glass has made 15 recommendations to the Victorian Government and WorkSafe, all of which have been accepted.
The government has agreed to:
- commission an independent review of the agent model to determine whether they should continue to manage ‘complex claims’
- introduce a new dispute resolution process which allows for binding determinations if conciliation fails, sparing injured workers the cost and time of going to court. These processes already exist in other Australian states.
- The Ombudsman’s investigation reviewed 102 complex claims, looked into WorkSafe’s handling of about 50 complaints, interviewed witnesses across the scheme and obtained other evidence, including a sample of agent staff emails.
- Complex claims primarily involve workers who have not worked and have been receiving weekly payments for 130 weeks or more. At the end of 2017-18, there were 4,544 of these claims, making up about one quarter of the 18,519 active claims in the scheme.
- Complex claims are the most difficult and expensive claims. The workers involved are likely to have more challenging health conditions. The majority of WorkCover claims are neither complex nor contentious.
- In 2017-18, 70 per cent of decisions disputed at court were overturned or varied.
Case studies describing the experiences of 51 injured workers and their families are included in the Ombudsman’s report. The case studies include:
- An aged care worker who was put under surveillance without adequate justification. The surveillance footage showed her walking with a limp caused by the back injury she had sustained at work. When the worker asked an agent if she was under surveillance, the agent denied it and told her if she had concerns about being followed, she should go to the police. (case study 4, page 45).
- A factory worker whose payments were terminated when he failed to participate in occupational rehabilitation, despite experiencing psychotic hallucinations. An Independent Medical Examiner (IME) who examined him told the agent: “If you expect someone who is having psychotic hallucinations to give a rational medical history and provide a satisfactory clinical examination, then you’ve had little experience in dealing with psychiatrically disturbed people”. (case study 6, page 55).
- A finance officer who suffered a serious stress-related heart condition at work in 2002, and later developed a secondary mental injury. Despite multiple different IMEs over a 15-year period concluding the woman was indefinitely (and possibly permanently) incapacitated for all work, the agent sent her to occupational rehabilitation in 2017 based on new opinions obtained. Her doctor wrote to the agent: “As is the way of some insurance companies (the agent) has pushed (the worker) to multiple doctors of their choice, paid by them, and eventually finding some who find, in a single consult, that she should go back to work … The frequent reassessment is very stressful to her, and undoubtedly, by increasing her anxiety, is deleterious to her health.” (case study 6, page 55).
- A police officer who developed PTSD after attending traumatic events. An IME concluded in 2017 the man was indefinitely incapacitated for all work. However, the agent tried to change the IME’s opinion by highlighting that the man played golf, asking “would this not translate to a partial capacity for suitable alternative employment or capacity to participate in occupational services?”. The IME then said it was ‘possible’ the man had improved since he saw him and that he could now participate in occupational rehabilitation, to which he was then referred. The man complained to WorkSafe, saying the IME’s claims were ‘baseless’ and a ‘guess’, not an opinion. (case study 8, page 60).