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 difficult 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.
*Dr Bill Stone and Anne Stone, occupational rehabilitation specialists, Victoria, Australia
1 Workcover - the administrator of the Statutory scheme covering employers' liability in Victoria, Australia, pursuant to the Accident Compensation Act, 1985 (Victoria).
2 "Repetitive Strain Injuries" Dr W E Stone, Med J Aust, 1983; 2: 616-618; "Occupational Repetitive Strain Injuries" Dr W E Stone, Aust Fam Phys., Vol 13, No 9, Sept 1984.
3 Health Records Act, 2001 (Victoria)
Copyright 2005. Greek Legal and Medical Conference