Archive for October, 2013
The following article appeared in the Canberra times yesterday relating to Comcare’s future viability. One has only to look at changes made to the work cover scheme in NSW to realise that such reviews rarely benefit employees who are injured at work and who legitimately claim compensation for their injuries. The first casualty is inevitably the quality and frequency of treatment afforded to injured workers which significantly increases the rehabilitation period costing more money in the longer term (a false economy)
Unfortunately this article, like almost every other article published in the media on the same subject, focuses mostly on the subject of legitimacy of workplace injury claims and does not delve sufficiently into the deeper root causes of such cost blow outs. There is the subtle suggestion that psychological workplace injuries are somehow less legitimate than physical injuries in the workplace, usually backed up by a reference to a single sensationalist claim such as a worker injured whilst having sex.
What such articles do not reveal are the other significant factors behind the cost blow out of such schemes, which include:
The extent of litigation engaged in by Insurance Scheme (a.k.a Comcare) in order to avoid paying legitimate claims for which they are inevitably found liable. The costs of fighting such claims often run into millions of dollars, for claims that are often only in the realm of tens of thousands of dollars. So now we have a claim that is upheld, plus significant legal costs as the Commonwealth typical hires barrister(s) to defend the claim, plus often a cost claim by the injured worker and more often than not, a significant increase in the injured workers injuries and by extension the cost of their rehabilitation.
How many journalists writing such articles ever bother to seek information on how much the insurer has spent on ultimately fruitless litigation or acknowledge the growing criticisms of both judiciary and tribunal over the numbers of matters heard which ultimately should have been concluded in favour of the genuinely injured employee.
Another significant, yet often under examined factor directly related to the increase in the cost of the workers compensation schemes (such as the Comcare scheme) is the manifestly inadequate rehabilitation support provided by licensees of the scheme, particularly in relation to psychological injuries.
There appears to be a growing trend in federal agencies placing psychologically injured workers in the “too hard basket”, preferring to keep them out of the workplace indefinitely where “out of sight is out of mind”, thus all but condemning the injured worker to a never-ending cycle of claims and eventually a life of welfare at 75% of their pre-injury earnings, if they are “lucky”.
Unfortunately many employers, the CSIRO in example, fail to understand the different between back at work and fully rehabilitated, suggesting that their responsibilities towards injured employees end as soon as the employee returns to work, irrespective of whether they are working at pre-injury capacities, in their pre injury roles, or undertaking appropriate employment duties relevant to their skills.
A number of members have reported to Victims of CSIRO that Comcare have shown a decided lack of interest in ensuring that licensees provided adequate rehabilitation to injured workers, more often than not stating that it is the employers responsibility and nothing to do with Comcare. Intelligence would suggest that anything that is likely to significantly increase the cost of the Comcare scheme would be of paramount interest.
One also has to look at the performance of Comcare in relation to allegations of unsafe workplace practices, particularly those that are likely to lead to serious psychological injuries.
Again we use the CSIRO as an example:
Comcare in 2012 issued an Improvement Notice to CSIRO in relation to the way it addresses psychological injuries, no doubt accompanied by overt breaches of the Work Health and Safety Act. In early 2013, the CSIRO announced an investigation (sponsored by the CSIRO), into ongoing allegations of workplace bullying and misconduct which continue to plague the organisation. In the second half of 2013, the investigator uncovered 134 separate allegations of workplace misconduct, despite many declining to participate in the investigation amid concerns surrounding the impartiality of the process.
Throughout and subsequent to these distinct and separate processes, Comcare have continued to receive compensation claims relating to psychological injuries sustained due to workplace bullying, in one case two from the same site in QLD within weeks of one another plus anecdotal evidence of a further 10-12 allegations at the same work site.
In 2012, other revelations were exposed in the Senate Estimates Committee including:
– The CSIRO failing to investigate in the order of 10-12 additional allegations of harassment of female employees relating to a single senior employee, on the basis that they had not made formal complaints despite the CSIRO having a clear obligation to address any allegations relating to unsafe work practices and allegations of criminal misconduct.
– In 2012, it was also disclosed that CSIRO over recent years had received advice relating to employees on workers compensation who had either successfully committed suicide, unsuccessfully attempted to commit suicide or threatened suicide, despite CSIRO having previously claimed no knowledge of any such instances. Apparently such matters were not of particular concern to CSIRO as the did not occur whilst on site!
– In 2012, CSIRO CEO, Dr Megan Clark callously stated that she “regretted a colleague had left CSIRO feeling mistreated” after the “colleague”, Martin Williams suffered a serious psychological injury as a result of the actions of other senior employees of the CSIRO. It should be noted here that as a result of unreliable information from the CSIRO, Comcare instigated a challenge to Mr Williams legitimate compensation claim which no doubt cost it millions in legal fees to defend. Despite CSIRO officers having been alleged to have made no less than 128 false statements before the Administrative Appeals Tribunal, no further action was taken by either Comcare or the CSIRO.
– Claims of workplace bullying and lack of rehabilitation support continue to be addressed on a regular basis to Dr Clark herself, yet Dr Clark has consistently failed to demonstrate any leadership in relation to such matters.
Despite Comcare being availed of greater powers to prosecute individuals for breaches of the new Work Health and Safety Act (Cth), there has yet to be a single prosecution in relation the woeful health and safety performance of the CSIRO, particularly in the way the organisation deals with Workplace bullying.
In conclusion, it is not the increase in spurious or false workplace injury claims that is driving up insurance premiums as the mainstream media would have us believe, but is due to the almost complete absence of compliance action undertaken workplace health and safety regulators such as Comcare in a) prosecuting unsafe workplace practices and b) ensuring that licensees such as the CSIRO provide effective rehabilitation programs that don’t simply consist of sitting injured employees at a desk twiddling their thumbs until they can be pushed out of employment under some spurious re-organisational pretence.
There is absolutely no point in changing the legislation when it is obvious that the real problem is enforcement of compliance with the existing legislation itself.
- October 31, 2013 – 12:00PM
Reporter for The Canberra Times
Taxpayers have been left with a bill of nearly $100 million in the past year as the cost of public service workers’ compensation claims continues to climb.
Federal government workplace insurer Comcare will unveil a $98 million loss in its annual report, blaming more psychological claims in public service workplaces and “injured” bureaucrats staying off work longer.
The scheme’s long-term liability for payouts is now more than $2.6 billion, with more than 30 per cent of it unfunded, and last year’s horror losses of more than half a billion dollars have been revised upward to a book loss of $670 million after changes to accounting practices.
Federal departments and agencies had to find an extra $70 million for workers compensation premiums in 2012-2013 and are looking at another 18 per cent increase in 2013-2014 as Comcare tries to fund its long-term liabilities.
Despite Comcare’s win in the High Court on Wednesday against a public servant claiming compensation for injuries sustained while having sex, the results look set to intensify the momentum for reform to public sector workers’ compensation.
Despite accepting fewer claims in 2012-2013 than the previous year, the cost of payouts, including medical, legal and other overheads, grew by nearly $40 million to $360 million in 2012-2013.
Comcare chief executive Paul O’Connor, in his foreword to the report, said the stay-away rate and growing numbers of public sector psyche claims were to blame for the scheme’s continued financial woes.
“Psychological injury costs continue to rise and the length of time ill or injured people are away from their work has worsened at public sector workplaces,” Mr O’Connor wrote.
In March a review of the scheme ordered by previous Labor Government ordered a review urged sweeping reform to cut down on dubious claims for psychological injuries, payouts for dodgy therapies, doctor shopping and outright fraud.
The review made more than 147 recommendations to rewrite the legislation on federal public sector compensation claims with the aim of getting injured bureaucrats back to work and ending their “passive” reliance on compensation.
But legislation to implement changes has stalled with the change of government.
It would seem that once again the goal posts have shifted in the CSIRO Investigation into Workplace Bulling and other Misconduct. The Victims of CSIRO’s attention was drawn to yet another change in the Terms of Reference for the investigation on the 9th of October 2013, the third such reinvention of the Terms of Reference to date.
Despite significant criticism from stakeholders over the lack of consultation in developing the Terms of Reference, the investigator and CSIRO continue to tinker with the terms, apparently in an attempt to address the glaring inadequacies inherent in the original Terms which we understand to have been drafted by CSIRO’s Legal Department under the direction of Deputy CEO, Mr Mike Whelan, who was conspicuously absent during the publication and mass media spin-doctoring of the Stage 1 report.
The notable changes are in the following sections of the latest Terms of Reference.
18A Notwithstanding paragraphs 16 and 17, the investigator may during Phase 2 investigate a submission if the investigator has in Phase 1 recommended to CSIRO that CSIRO should allow the investigator to further investigate that submission during Phase 2 and CSIRO has accepted the recommendation.
30A Phase 1 may continue after 31 July 2013 for submissions in respect of which the investigator was not able to complete his initial consideration of the submission by that date.
Section 30A suggests that the investigation team are fishing around for more information relating to some of the claims which some educated people voted with their feet by electing not to participate in. In fact we have received a number of comments from individuals whom the investigator specifically sought out (assumedly upon the advice of CSIRO) who had elected to steer well clear of the investigation process. We believe that some of these individuals may have also been contacted after the closing date for submissions.
These changes in the Terms of Reference may also potentially enable the CSIRO to move the investigation of such matters out of public view into a grey legal area in which the CSIRO could potentially claim professional privilege over the material, thus preventing the people it relates to obtaining such material under FOI provisions…
The notable omission in Section 30A is a revised date for when ongoing Stage 1 investigations must be completed (assumedly when the CSIRO stops paying the bills which could be a very long time).
We hope that the incumbent government will put a stop to this farce and initiate a credible and transparent investigation which is truly at arm’s length from the organisation purportedly sponsoring it!
Despite the issuing of an Improvement Notice to CSIRO last year which was highly critical of the shortcomings in CSIRO’s processes and the Stage 1 Investigation Report, revealing a general lack of adherence to what policies the CSIRO does have in relation to workplace misconduct and workplace bullying, the Victims of CSIRO continues to receive information from current employees indicating that little has changed.
It is quite obvious that neither the Comcare Improvement Notice or the Stage 1 Report has resulted in no significant positive change in the overall culture of the organisation and is at best, a tick in the box of a paper management team.
We also note that a significant proportion of CSIRO’s senior management have been quietly slipping out the door, apparently to avoid further scrutiny of their actions and culpability and question whether this “practice” truly reflects the CSIRO’s stated public commitment to address such serious workplace issues.Read Full Post | Make a Comment ( None so far )
This recent article published in ‘The Australian’ suggests an alarming trend in the increase in incidents of Commonwealth Agencies failing to comply with their obligations to act as a model litigant under the Legal Services Directions (2005). Those currently undertaking litigation or administrative review processes in relation to Commonwealth Agencies should ensure that they are familiar with the Legal Services Directions (2005). This is particularly important for anyone self-representing in such matters. The most common potential breaches anecdotally reported to Victims of CSIRO include:
* undue delays in resolving matters before a court of tribunal (constant unreasonable requests for an extension of time in which to comply with directions of a Court or Tribunal in filing documents, particularly when those requests are filed just before the deadline for such directions)
* Threatening or coercive behaviour with the intention of inducing a party into acting in a certain manner, particularly one which is not in the best interests of that party.
* Failure to settle matters of compensation in which the agency has a reasonable expectation of liability. (refusing to pay compensation for matters not in contention before a court or tribunal under the justification that it is inappropriate because of the proceedings. This may also meet the definition of coercion if it can be demonstrated that such a refusal intended to persuade a party into dropping a matter because it would otherwise disadvantage them financially. This may also form a breach in exploiting a parties financial circumstances)
* Providing misleading directions in relation to matters currently before a Court or Tribunal (i.e. telling a party in such proceedings that they cannot do something which the are legally entitled to do)
* Failure to provide evidence which would prejudice the proper decision of a court or tribunal. (i.e. withholding documents that would prove the applicant’s case)
* Reliance upon legal technicalities (i.e. you haven’t filed a document in a certain manner)
* Taking advantage of an applicant’s financial status to disadvantage them. (unduly increasing the cost of litigation by delaying proceedings or introducing evidence coincidental or irrelevant to the proceedings)
If you believe you have been unfairly treated in matters of litigation by the Commonwealth or its representatives we would urge you to seek legal advice, and/or raise a complaint with the Commonwealth Attorney-General or the Office of the Legal Services Coordinator (OLSC)
The article is as follows:
- Chris Merritt
- The Australian
- September 20, 2013 12:00AM
Source: The Australian
THE Abbott government has been urged to overhaul the rules governing the conduct of federal agencies in court so the organisations with the worst behaviour can be identified.
Research by the Rule of Law Institute has revealed a surge in breaches of the government’s legal services directions – which cover the conduct of federal agencies in court as well as the way in which they buy legal services.
But the Attorney-General’s Department, which assembles details on these breaches, does not disclose which agencies have been found to have breached their duty to act fairly and efficiently when they take legal action against companies and individuals.
It also does not disclose which agencies have been buying legal services from law firms and barristers in ways that do not comply with the government’s rules.
Rule of Law Institute chief executive Kate Burns said the limited information made available by the department shows that the number of breaches rose from 17 to 42 last financial year. A further 50 matters were still under investigation.
“The difficulty we have is the lack of transparency surrounding this process, so we don’t know who they are,” Ms Burns said.
The department’s website says the breaches of the legal services directions “generally related to failures to act as a model litigant”.
It says 24 of the breaches concerned the failure to provide certificates of compliance or report expenditure on legal services within 60 days of the end of the financial year.
Ms Burns said the Attorney-General’s Department should be required to disclose the exact nature of each breach of the legal services directions as well as identifying the agency involved, what they had done wrong and what action had been taken.
The agencies at fault should be required to provide a statement outlining what redress had been provided to the parties adversely affected by their conduct.
She also urged the new government to introduce a formal system of dealing with complaints about the courtroom conduct of government agencies instead of relying on the agencies to report their own shortcomings.
She was concerned that the large number of alleged breaches still under investigation suggested that many matters had been carried over from the previous year.
Ms Burns said the institute would like to see the commonwealth’s obligations under the model litigant rules enacted as legislation.
“At the moment it seems to be a rather discretionary process and all that is required is that agencies report to the Office of Legal Services Co-ordination, which apparently limits itself to educating agencies,” she said. “We would like to see a transparent process so we know what is going on with breaches and they are properly reported.”
She said Attorney-General George Brandis already had the power to impose sanctions on federal agencies that breached the model litigant rules. She believed parties to cases that had been affected by breaches of the rules should be involved in the process of imposing sanctions on the agency at fault.
“At the moment there seems to be a history of courts making adverse costs orders against the commonwealth where there have been breaches of the model litigant obligations, but those costs orders are in effect paid by the taxpayer,” Ms Burns said.
“We would want to see some kind of assurance that the agency conforms to its obligations and is monitored to ensure that it does.
“If the model is based on education to stop agencies from breaching their obligations, then it does not seem to be working.”
She said there was also a need to properly disclose the use of coercive powers by federal agencies.