“Immoral and unethical”: WorkCover needs wholesale change to restore fairness for long term injured workers
Date posted:
Modern music begins to play.
Victorian Ombudsman Deborah Glass appears in mid-shot, standing indoors in front of a large window overlooking trees and a busy street in Melbourne’s CBD. She is speaking directly to camera.
Glass: This is the first time in my five years as Victorian Ombudsman that I’ve investigated the same issue, twice.
The opening scene fades to a slide containing the logo of WorkSafe Victoria, and the text “WorkCover” side by side at the top of screen.
Glass: Victoria’s workers’ compensation scheme, WorkCover, provides a range of entitlements to people who are injured at work.
Glass: The organisation responsible for the scheme, WorkSafe, outsources the management of injured workers’ compensation claims to five agents.
The names of five companies that provide workers’ compensation – referred to as ‘agents’ – appear on screen below the WorkCover and WorkSafe logos:
- Allianz
- CGU
- EML
- Gallagher Bassett
- Xchanging.
The slide fades to footage of the Ombudsman sitting at a table in her office reading a hard copy of her 2016 report into the same issue.
Glass: In 2016, I tabled a report into how agents were handling complex claims. These mostly involved workers with long-term injuries who’ve been off work for two years or more.
The footage fades back to the mid-shot of the Ombudsman speaking directly to camera.
Glass: My 2016 investigation concluded that while the overall system was not broken, it had failed some particularly vulnerable people.
Glass: While WorkSafe and its agents have made some changes since then, my office continues to receive hundreds of complaints about them.
The following text appears on screen:
“Number of complaints we’ve received
Nearly 700 in 2017-18
About 800 in 2018-19”
The slide fades back to the mid-shot of the Ombudsman speaking directly to camera.
Glass: Having now re-investigated the situation, I can say categorically that not enough has changed.
Glass: If anything, the evidence suggests the impact of my last report was to drive practices underground.
An image of two internal emails appears on screen. The first email requests the increased use of a doctor whose assessments resulted in the termination of two workers’ compensation claims. The second email below is a response to this sent on 2 May 2018, the visible part of which states “Everyone delete this email now”.
Glass: From the evidence in this report, my last investigation only scratched the surface.
The image of the second email comes to the forefront of the slide, highlighting the text “Everyone delete this email now”.
The slide fades back to the mid-shot of the Ombudsman speaking to camera.
Glass: The system is failing to deliver just outcomes to too many people. Agents continue to make unreasonable decisions. The dispute resolution process can be time-consuming, stressful and costly, and WorkSafe is too often unwilling or unable to deal.
The shot fades to footage of people crossing the road towards the main entrance of Flinders Street Station in Melbourne’s CBD. The camera moves towards the Station amongst the crowd.
Glass: The workers affected in the cases we reviewed included nurses, teachers, police officers, aged care and childcare workers, truck drivers, baggage handlers and tradesmen.
The footage fades back to the mid-shot of the Ombudsman speaking to camera.
Glass: The emotional toll is clear. These cases involve people’s lives. The cost – not only to them and their families, but to society as a whole – should not be forgotten.
Glass: We uncovered a range of concerning practices.
Glass: Unreasonable decision making:
- by agents who came to conciliation, not prepared to negotiate beyond a paltry sum
- maintaining decisions they knew would be overturned by a court
- and by agents conducting surveillance of workers without adequate justification.
A slide appears with the text: “Unreasonable decision making by agents”.
Quotes from Conciliation Officers appear on screen [emphasis added]:
“These five companies are all private companies… and the maximisation of profits is their primary aim. Their secondary aim of course is fair and just compensation to injured workers.”
“I think that they’re unfairly using that part of the legislation to bully somebody into going back to work when their own doctor is saying ‘look you can’t’.”
Glass: We found unfair return to work practices, including agents requiring workers to participate in occupational rehabilitation at inappropriate stages of their recovery.
A slide appears with the text: “Unfair return to work practices”.
A quote from an Occupational Physician appears on screen:
“You will note that at the time that I saw this gentleman, he was having psychotic hallucinations. If you expect someone who is having psychotic hallucinations to… provide a satisfactory clinical examination, then you’ve had little experience in dealing with psychiatrically disturbed people.”
Glass: Cases which resulted in the termination of a worker’s entitlements were considered wins by agents. Staff openly discussed the amount of money these terminations would make for the business.
A slide with images of three internal emails from EML sent on 10 April 2018 appears. Each email states, in order:
“Brilliant!! Handy 75K made today, no biggie :D”
“DO I get a portion of that? Haha”
“Yep, it’s been deposited into your offshore Cayman Island account… [Worksafe, just joking if you are auditing emails, please don’t put me in the 2022 ombudsman report]”.
Glass: In many cases, WorkSafe failed to provide proper oversight of agents.
The emails fade to a slide containing the text: “WorkSafe failed to provide proper oversight of agents”.
The slide fades back to the mid-shot of the Ombudsman speaking directly to camera.
Glass: Many of the decisions we saw were not only unjust, unreasonable and wrong. Some were downright immoral and unethical.
Glass: I have made 15 recommendations to the government, and to WorkSafe, all of which they’ve accepted.
The shot fades to a slide with the heading “15 recommendations” at the top and the following text below:
“The Victorian Government has agreed to:
Review whether agents or someone else should be managing complex claims; and
Introduce a new dispute resolution process which allows for binding determinations, and saves workers the cost of going to court.
A further 13 recommendations have been made to WorkSafe.”
The slide fades back to the mid-shot of the Ombudsman speaking directly to camera.
Glass: It is clear that the balance between financial sustainability and fairness has tilted too far away from supporting injured workers.
Glass: Nothing short of wholesale change will bring back the humanity the system needs.
The shot fades to a closing screen containing the text: “To read the report, or for more info: www.ombudsman.vic.gov.au/Worksafe2 . Royalty free music from Bensound.”
The screen fades to black and the music fades to silence. End.
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," Ms Glass said,
"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," she 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.
Read the report here: WorkSafe2 - Follow-up investigation into the management of complex workers compensation claims
Media contact: 0409 936 235
Facts and figures
- 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
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 undoubtably, 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).