Vic ombudsman to investigate workers comp claims
26th Nov 2015
An administration manager who seriously injured her back in a fall during a team-building ice-skating exercise has so far undergone three surgeries, requires a daily concoction of pain relief medication and cannot sit, stand or walk without excruciating pain courtesy of the bones in her lower back grinding together.
Despite being out of pocket more than $10,000 for two of the surgeries, and owed in excess of $5000 for the many different medications she has to take, the 40-year-old has been told by her employer’s WorkSafe agent that she is no longer entitled to receive weekly payments or have her medical expenses paid.
She cannot meet her mortgage repayments, living expenses and other financial commitments without these entitlements, which she never would have required had the work team building exercise in 2010 have never taken place.
She has had mediation several times in the Accident Compensation Conciliation Service (ACCS) regarding different aspects of her claim, only to have wait months for the matter to reach a hearing. Each time her entitlements have been reinstated.
Sadly, she is one of many injured workers who come to Maurice Blackburn under duress after they have been injured at work through no fault of their own.
Despite complying with repeated requests by their WorkSafe agent to prove the validity of their injuries – including attending multiple independent medical examinations (IME) − many of them are treated unfairly.
Such cases make Victorian Ombudsman Deborah Glass’s decision to launch an own motion investigation into the handling of workers compensation claims long overdue.
The investigation will look at whether WorkSafe agents have unreasonably denied liability or terminated entitlements for people who have suffered workplace injuries. It will also focus on agents’ use of IMEs and examine whether WorkSafe is providing effective oversight of agents and their management of claims.
The investigation follows a significant rise in the number of complaints received by the Ombudsman’s office about WorkSafe agents: 370 complaints in 2014-15 up from 246 in 2007-08.
Ms Glass said the most common complaints related to claims decisions and processes, including failures in decision-making and failures by agents to consider evidence. The second-most common area for complaints was about payments, more specifically complainants registering dissatisfaction with issues around insurers’ decision-making processes, she said.
Many of our clients have experienced similar concerns. Medical practitioners have also expressed frustration to us about their interactions with WorkSafe agents in having their medical opinions second guessed, or forcing doctors, physiotherapists and other medical professionals to wait lengthy periods for approvals for patients to get necessary treatment.
This too can lead to a worsening of workers’ injuries and affect their prospects of successful rehabilitation and return to work, which contrary to why the system was set up.
The fact that this is the second investigation by the Victorian Ombudsman into workers compensation claims in five years suggests that the way WorkSafe and its insurers treat injured workers needs a complete re-think.
In 2011, Victoria’s then Ombudsman George Brouwer launched an own motion investigation into the record keeping and administrative practices of WorkSafe agents following a 27 per cent increase in the number of complaints. Many related to injured workers having to repeatedly submit the same documentation to agents, and delays in service this was consequently creating.
Although several recommendations were made, complaints to the Ombudsman’s office have continued to rise. So too have the number of disputes lodged with the ACCS, which often leads to workers’ injuries worsening rather than helping with their rehabilitation and return to meaningful work because of the associated delays.
All this is despite WorkSafe existing under the Workplace Injury Rehabilitation and Compensation Act 2013 to, among other reasons, help injured workers return to work, and manage the injury insurance scheme by ensuring the prompt delivery of appropriate services and adopting prudent financial practices.
While authorised agent CGU was fined $2.8 million for manipulating its compliance with an incentive offered by WorkSafe following the last Ombudsman investigation, the role financial incentives have played in agents’ decisions to deny or terminate workers compensation entitlements will also be examined under the new investigation. We are interested to see what that reveals, especially whether incentives have played any role regarding insurers denying workers claims.
Ultimately though, people should not be treated as second class citizens or be suspected of fraud just because they have been injured at work. It is also counterproductive for workers, employers or WorkSafe if incentives are being used to encourage insurers to reject claims and force workers into costly litigation.
We will continue to fight for our clients including the one mentioned above, as she prepares for yet another medical procedure that might reduce some of her crippling back pain. That is, if her WorkSafe insurer ever approves it.
Liberty Sanger is a Principal, Board member and Practice Group Leader at Maurice Blackburn Lawyers who co-manages the firm’s Victorian WorkCover and road accident injuries (TAC) departments. She tweets @libertysanger.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).