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REHABILITATION – REGULATION AND EMPLOYEE RIGHTS
DR BILL STONE and MS ANNE STONE*
This Presentation was delivered in two parts; Part 1 by Dr Bill Stone and Part 2 by
Ms Anne Stone.
PART 1
There are regulatory requirements and expectations in road and work trauma
management that would be unlikely to be countenanced in any other area of medical
practice. It is expected that claimants will give a broad release for the regulatory
body to contact treaters, even to the extent that whole treatment records are
requested, which will often include treatment for conditions that frequently have no
relevance to the claim, and for medical conditions that may be sensitive and
personal.
It is very difficult to get the balance right, as it is not uncommon for claimants to
commit errors of omission. For instance, I was recently involved in a case where the
worker had accepted injuries to both upper limbs, but a further injury to his dominant
wrist, since the claimable injury, was not disclosed until gentle and persistent probing
brought the non-claimable injury to light. In this instance the disclosure had an
impact upon the determination of his whole person impairment.
Errors of commission are much less frequent in my experience.
An example of the other side of the process is a situation I have seen too often,
where the regulatory body (or its agent) undertakes a fishing exercise to try to
establish any psychological issues in the claimant’s pre-accident past.
What is reasonably relevant and what is not, particularly with respect to claimants
with injuries that are not moment-in -time injuries, is a very grey area.
In work related injuries there are disclosure requirements upon treaters to the
employer, and these can be difficult, especially when an antagonistic relationship
prevails between worker and employer. The closer the commercial relationship the
treater has with the employer, the more complex this becomes, as expectations by
the employer and suspicions by the injured worker can make treatment and return to
work ("RTW") much more difficult than in circumstances of total independence of the
treater from the employer.
Third party payment arrangements, of necessity, have a tension between service
provision and fund management, and that tension is frequently a cause of much
angst to claimants, such as injured workers. This is especially with respect to their
medical management, their income replacement, and their job security.
This feeling of doubt about “justness” is shared by the payer, being (in Victoria) the
Workcover1 agent in the case of employees. This is particularly so in instances of
injuries that cannot be objectively established. Moment-in-time, blood-on-the-floor
types of injuries seldom result in regulatory dispute. However, gradual onset injuries
that have no ready means of substantiation are very much more of an issue.
Even when there are some external signs, such as in Complex Regional Pain
Syndrome Type 1, or in Repetitive Strain Injuries as defined in my article in the
Medical Journal of Australia in 19832, dispute can become rather extreme and
positions polarised, further adding to employee disability and employer/agent alarm.
Anxiety/stress is a more recent example of a problematical work injury.
Even the question of whether pre-existing conditions, such as spondylosis of the
neck or lower back, are aggravated at work or rendered symptomatic by a work
incident, can be very contentious and difficult for both parties. This type of situation
is understandably ill-defined from a regulatory perspective, and therefore is prone to
disputation.
A medical matter that has to be addressed early after an injury at work is whether or
not a worker should be encouraged to fill in a claim form, or contrarily, be advised
they would not receive your support on the claim form, so far as whether the injury or
disease is consistent with the worker’s stated work related cause. This can be a very
difficult matter when a person has been advised by others at the workplace to lodge
a claim, and to obtain medical certification from you in circumstances where there is
a degree of doubt about the consistency of the condition with the stated work related
cause.
Just how strong does the consistency have to be before you sign the form “Yes”. If
the form is signed “No”, then the claim is virtually certain to be rejected. I tend to put
in a short explanation if the issue is a darker shade of grey, though not yet black, but
in my years as the medical advisor for a Workcover agent it was most unusual to
receive any additional explanatory comment. The question is not black or white, but
in fact can be all shades in between. How to be fair to both claimant and payer?
The claim will be referred on to an Independent Medical Examiner ("IME") if there is
any doubt about the nature of the claim or if the claim is likely to be a significant claim
in terms of cost. It is interesting to see how the various agents refer claimants into
the IME process.
As in all fields there is a wide spread of opinion available and it is clear some agents
tend to refer to IME’s of a sterner bent than others. It is, of course, not possible for
regulators to overcome such variation of opinion, though large strides have been
made towards eliminating more extreme views since Workcover has become a more
active regulatory participant in Independent Medical Examinations ("IMEs").
If the medical practitioner first seeing the worker is employed by the claimant’s
employer, the task becomes still more problematical. There is a lot of subtle
pressure to keep costs as low as possible, usually without any thought of
disadvantaging the particular worker, though at other times the pressure can be
overt, either generally as part of that company’s corporate culture or more usually
specifically towards that particular worker. This is often dependent on how that
employee is thought of by the employer. It is difficult to not breach confidentiality
when working onsite, when there is interaction many times each day with the Human
Resources/Compensation personnel while negotiating Return to Work conditions with
respect to clinical circumstances.
If the employer is a self insurer there are further opportunities for difficult ethical
issues to develop, particularly as the dollar imperative is so much more direct. On
the other hand, a self-insurer who approaches injury management with an organised,
top-down, injury prevention approach can make much faster and more substantial
impacts upon work injury than employers covered by the central fund.
The restricted involvement of lawyers in the Workcover process of late has reduced
the frequency of workers in my practice who seem to rate compensation expectations
above clinical improvement and/or Return to Work. The creation of the Accident
Compensation Conciliation Service in Victoria, and the establishment of the second
version of the Medical Panels, has helped to reduce much of the psychosocial
sequelae that has always accompanied drawn out litigation.
While the present process still has considerable delays, the polarisation between
different stakeholders seems to be noticeably less, and resolution of disputation is
expedited, even if somewhat arbitrarily on occasions. I believe the current regulatory
environment has helped achieve better outcomes for employees overall, though
some would argue the more expeditious approach has been to their financial
detriment. Such people might not sufficiently appreciate that ongoing adversarial
actions, and “proving” of impairment time after time, is a hazardous personal pursuit
for workers.
The return to work stage of the regulatory and treatment processes gives rise to
relevant ethical issues, which will be addressed in Part 2.
In addition, it is relevant to consider some issues that relate to a cultural group in the
injured workforce population.
This is but one example of the complexity of medical management of injured workers
in a just society. The influences of cultural background on ability to achieve
successful RTW is an important issue. We examined RTW rates for 1,811
consecutive injured workers who were referred to our Service. 165 (9%) gave Greek
as their ethnicity. Their RTW rate was 31% for females and 44% for males,
compared with those of Australian ethnicity of 52% and 48% respectively. There
would be many reasons for the differences in RTW rates. I do not have the data
regarding the number of Greek women who did not work outside of home duties prior
to coming to Australia, but anecdotally it would be high, in excess of 50% in our
group.
Entering the manufacturing sector in a new country must be a daunting experience
for such women.
The percentage of the workers of Greek ethnicity who worked in manufacturing
industries was 68%, compared with 19% for Australian workers. The percentage of
Greek people above 55 years of age was 19% compared with 6% for Australians.
Further the number of Greek workers between 46 and 55 years of age was 48% and
for Australian workers was 19%. The percentage of Greek people who had been off
work greater than 12 months was 60% compared with 41% for Australians.
There are, of course, many other factors that would affect return to work, including
education, training and experience, transferable skills, fluency in English, and type of
injury. English is particularly important in being able to negotiate the regulatory
system following work related injury or disease. Thus, the first impression of poor
RTW rates for injured Greek members of this segment of the Australian workforce
becomes more explicable upon further examination.
In conclusion to Part 1, regulation and employee rights are something of a
contradiction.
Medical management in this area of practice is certainly a challenge. It is very
difficult to maintain the purity of the principles embodied in the concept of a just
society when many of your patients and other stakeholders in the regulatory
framework of workers’ compensation have an adversarial leaning. In comparison, it
is such a relief to see patients who are not subject to this regulatory environment,
and where there are no other stakeholders with their particular interests impacting,
no matter how integral they may be to proper claims management.
How can the principles of a just society rule the day in this environment?
PART 2
The conundrum - is return to work – a common goal or a war zone?
Communication is, of necessity, at the core of all forms of rehabilitation. In clinical
rehabilitation, this involves meetings and exchanges between doctors, nurses,
physiotherapists, occupational therapists, social workers, psychologists and, of
course, the ill or injured person – the patient – and their family. The patient and
family understand and virtually always cooperate with the free flow of information to,
from and between the members of this therapeutic team in order to achieve the goal
of functional independence and normality.
In occupational rehabilitation any or all of the above participants may be involved.
However, the ‘team” will also include other parties who are essential if the primary
aim of occupational rehabilitation, i.e. return to suitable, sustainable work within any
ongoing medical restrictions is to be achieved. Some of these other participants –
employers, unions, insurers/agents, solicitors, etc. – may or may not be therapeutic
in any particular case. The patient is now called a "client", claimant, worker or
sometimes less polite labels. The family is rarely, if ever, considered or included
despite the effect of the claimant’s status on all members.
The Occupational Rehabilitation Provider ("ORP") by default rather than desire often
becomes the coordinator of the process because it is too complex, time-consuming
and frustrating for most of the other clinical players. In this role, the ORP acts as a
collector and distributor of information. The client may be very concerned at what
sort of information may go to some of these other “non-therapeutic” parties via the
ORP because of a perceived potential for disadvantage, especially financial
disadvantage.
This concern can make the whole process of occupational rehabilitation very fraught
indeed. The ORP has to try to balance the possible competing interests and needs
of the various parties, while attempting to have all these disparate individuals and
groups work together to achieve a common goal, and at the same time ensure its
own obligations and ethics are not compromised in the process. A difficult juggling
act indeed!
The employer, through the insurer/agent, can obtain information because the claim
form which the claimant must fill out includes an authority for release of such
information. Without the authority, the system may say it could not action the claim
as it cannot obtain information on which to base decisions regarding the claim,
whether positive or negative for the claimant.
However, this authority does not cover the ORP which must obtain its own authority
to be able to gather essential information particularly from treaters and to distribute
information regarding factors affecting return to work. It is impossible to arrange a
return to work within medical restrictions if those restrictions are not clearly known
and understood. The medical certificates provided by doctors are not always as
clear as they might be regarding specific parameters for clients and clarification may
be needed to ensure tasks comply with the restrictions. In trying to ensure progress
towards the return to work goal such as negotiating with employers, it is critical that
the ORP is able to have input from the treaters and to convey any information which
could assist their clinical management. This may include accurate knowledge of jobs
that may be made available and of which the treater or worker may not be aware.
It is often necessary to be able to suggest other possible areas of assistance or
therapy, such as gym programs, to treaters and this requires discussion about the
client’s physical status. Frequently the ORP staff closely working with the client may
become concerned at symptoms of developing depression in the client or other
psychological effects which a very busy General Practitioner may not have had an
opportunity to pick up on. Being able to fully discuss the client’s needs including
possible psychiatric or psychological referral is clearly appropriate.
It has always been necessary for ORP’s to obtain a medical authority at the start of
any referral in order to be able to have these discussions with treaters and to pass on
relevant information which could affect the return to work. These authorities tended
to be fairly general in nature and lasted for the length of the occupational
rehabilitation programme, which could sometimes extend into years.
As we all know, recent Federal and State legislation has very much affected privacy
issues in general and occupational rehabilitation is no exception to this. The ORP for
whom I provide quality assurance management is typical of the degree to which the
documentation requirements have escalated. Now we have a full blown policy of
several pages. We have an authority form which is specific to each treating
practitioner. If a client changes any treater, a new authority is required for the new
treater. The authority/ies expire each twelve months so if the client’s needs are
difficult or complex, a whole raft of new authorities may be required. At any point the
client may refuse to sign an authority so there can be no communication with the
treater which may have significant effects on the ability of the ORP to provide
service.
At the start of every occupational rehabilitation referral, the client is specifically told
that reports, progress reports and other communication with the employer,
insurer/agent, and other relevant parties will be required. In some circumstances,
clients may start telling the ORP something which may be detrimental to them if
known by the agent/employer and should be told that if they continue with the
disclosure, the ORP will be obliged to convey that information to the agent. It is then
up to the client to decide whether they wish to persist with the statement or not.
Unfortunately, the very nature of compensation systems in Australia is adversarial.
This means that even if distrust is not a part of the initial relationship between
worker/client and employer/agent, the experience as the person journeys through the
system can lead either side to suspicion later on. Most referrals for occupational
rehabilitation now come from employers or insurer/agents (unlike our earlier days
when treating doctors most commonly referred), and any referral has to be approved
by the agent for payments to be made for the service (which is an artifact of the
system deliberately arranged by the various state governments). Clients may
therefore have a perception that the ORP is acting on behalf of the agent/employer.
This is actually not so. Most providers work very hard at maintaining independence
and impartiality as they would otherwise not be able to act in an effective manner if
they became known as clearly operating on behalf of either party but especially the
employer/agent.
It can be a perception nonetheless, and particularly where there is a bad relationship
between the parties. This misperception, or mistaken advice from others, may lead
some clients to refuse to sign authorities at all.. The problem with this decision is that
if the client persists with the action, the ORP is obliged to report the refusal to the
agent. It must be emphasised that this happens in a very small number of cases and
can often be resolved by the provision of information and discussion to clarify
problems or concerns. Where authorities are not signed, the input of treaters cannot
be obtained or included in reports.
As noted before, it is extremely difficu
lt to decide on or comment on the suitability of
return to work plans without some level of treater input. Initial or vocational
assessment reports may be compiled on the basis of the interview with the client and
employer comments on jobs or tasks which might be available. Without the input of
treaters, however, reports can only be based on the expertise of the provider,
comments from parties on matters where authorities are not essential, and some sort
of qualified assessment as to whether these options sound reasonable on the limited
knowledge available to the ORP. The usefulness of the reports under these
circumstances is questionable and any ongoing rehabilitative process is virtually
impossible.
Such refusals to sign authorities can result in a negative outcome for the client. The
legislation requires the worker to participate in rehabilitation and other activities which
could enable the worker to return to work. Refusal to sign the authority can be
viewed as non-active participation and the agent may well take action to deny the
claim or terminate benefits under these circumstances. ORP’s, accordingly, try to
advise the client that the agent has to know about the refusal and that the agent may
decide to take such action so that the client is able to make a fully informed decision
and understands the consequences which may ensue.
As many of you may know, recent legislative changes mean the workers are now
able to choose their own ORP from a short list rather than the employer or agent
having virtually total effective control of this referral. It will be interesting to see if the
issues of communication and information exchange arise as major reasons for
choices that are made by workers. It is easy to see that unions in larger companies
may have a lot of influence on the decisions that are made and therefore may
eventually affect the processes which develop in the future.
Given the adversarial nature of most compensation systems, there can be major
issues for ORP staff in terms of their professional roles and the ethical obligations
attached to those roles. This can create many quandaries for ORP’s as they walk a
tightrope between two sides, each trying to gain advantage over the other,
particularly in the troublesome cases that so often form the basis of the stereotypes
that may affect decision making.
Provider staff may develop a close and trusting relationship with clients and warm
working bonds with employers. They may be told many things which could be used
by an employer/agent to disadvantage the client or vice versa. If an employer says
he just wants a worker back at work and off benefits and then the worker’s job will be
terminated, should the ORP tell the worker? If a worker tells the ORP that he is lining
up a job elsewhere which he will take once he has returned to an existing employer’s
workplace and reached his entitlement to long service leave should the employer
(who is often trying very hard to organise a suitable job for him) be told?
Neither of these intentions actually affect the rehabilitation goal of return to suitable,
sustainable work within medical restrictions. If issues can affect the rehabilitation
goal then they need to be aired. If not, should they remain undisclosed? What
guidelines should apply if compensable systems were an exemplar of a “just society”.
Where these matters do not involve possible fraudulent behaviour or are unrelated to
the return to work process, in general the the provider should be maintaining
confidentiality. Not to do so could well mean the provider ends up as the “privacy
test case” which they all fear.
However, where ORP’s depend on a close relationship with an employer or agent for
referrals and payment of costs, there may be a real tension or subtle pressure to
reveal some of those matters in order to maintain the relationship which is of benefit
to the ORP. Some providers have had difficulty in maintaining a clear demarcation
and this is particularly acute where the provider is owned by an insurer/agent, even
to the extent of operating out of the same premises. In all cases, a strong quality
control mechanism with clearly enunciated policies and staff training is needed to
overcome the threat of stepping over the line where impartiality is compromised and
the essential element of independence is eroded.
In addition, the provider has to be careful of maintaining a quite factual approach to
reporting. Emotive or possibly pejorative terms, which could convey a negative or
questionable image of the client which is not supported by facts, must be avoided.
The experience by the client of the system he or she is caught up in can be difficult
enough without extra fuel being added through the use of such language.
And, of course, occupational rehabilitation exists not in a vacuum but in the midst of
an often highly charged legal system. Requests from legal representatives on both
sides, which can sometimes sound like demands, for access to all information held or
for particular points of view to be emphasised can be hard to withstand. Some of
these requests can be complied with under the terms of the Health Records Act3 but
others have to be clearly understood for what they are and stoutly resisted.
Involvement in any sort of rehabilitation process demands effective communication
skills. The RTW “team” (or participants in a case) in occupational rehabilitation can
be a minefield for the unwary ORP practitioner trying to manage the communication
cycle. The RTW “team” includes not only treaters, who may be expected to focus
solely on the needs of their particular patient, but also other members with different
and often competing needs who may have a desire to assist but are having to fulfil
other priorities.
In a just society it may be argued that meeting the injured patient/client/worker’s
clinical and support needs should automatically meet the needs of the other players.
If this were so, then all my years of trying to negotiate this maze would only convince
me that compensation systems are not examples of “just societies” at all.
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