workers compensation – Page 30

When employees are their worst enemy.

A recent article in a rehabilitation newsletter reminded me of a client from several years ago.

Several employees in a small item packaging line were reporting wrist and forearm soreness toward the end of their shift. They believed that the line speed was too fast for them to comfortably work their full shift.

In consultation with the workers and the operations manager we went through various possible control options – line speed, automation, seating, posture, warm-up exercise, footwear, length of shift…..

A couple of days later, I was at the workplace at the end of the shift. The employees said they were sore but they did not go home. They stayed on for several hours of overtime. When I asked them about this they said they always do the overtime.

So the assessment of working environment had incomplete data.

My advice was that if the employees were putting themselves at harm of the potential for harm, undertaking overtime while not fit-for-work contravenes their own OHS obligations. If the employer offered these employees overtime knowing the employees were in pain, the employer is breaching the OHS obligation.

That is the straight OHS position. But life is more complex than OHS. The right OHS decision deprives the employees of additional income. The right OHS decision could encourage employees to not report their pain or discomfort, for if they do, the offer of overtime would be withdrawn. Non-reporting of injuries is a common short-term decision that many employees make.

It is in this context that consultation is required between employees, production manager, supervisor, human resources officer, and the health & safety rep, if one is on site. This consultative group can then make a decision that everyone understands the justification for, even if some participants do not like it.

A question to ponder from the scenario above – if one of the workers developed pain during the normal work shift, undertook overtime without the employer being informed of the pain and put in a worker’s compensation claim for the pain, would the employer feel justified in contesting the claim?

Kevin Jones

Prophet and Loss – review

I bought tickets to the Jane Woollard play Prophet & Loss in almost total ignorance of the play and, as a result, sat in the old church on a cold Winter’s night wondering what I was in for. The program was detailed but I hadn’t time to read it. I knew the play was about issues related to workplace death. That’s the “loss”. The “prophet” was Isaiah and that was the element that I could not understand without later reflection.

However, finding out about Isaiah could wait till we got home and then we could research a further dimension to what we saw. The stories that told of the impact of workplace fatalities on families and workmates were compelling although a couple were familiar to me. They told of bureaucratic confusion, the disinterest of insurance company call centre staff, the psychological legacy of a traumatic death and the inability to understand the survivor experience without having experienced it firsthand.

The venue was small but high and so the actors were close and the pain and grief was well presented. All of the actors were very good even though I was sure I had seen one of them before somewhere. It wasn’t till I looked at the program that the actor who looked like Helen Morse was indeed Helen Morse.

The stories’ subjects were frustrating and bleak, there is little opportunity for humour on this topic, but there was opportunity for theatricality and motion. Fanny Hanusin broke the rhythm with her portrayal of Merpati who was hyperventilating in panic over the lack of understanding of her situation. As Glynis Angell, the grief counsellor, Merrilyn, began breathing slowly to decrease Merpati’s panic, most of the audience were breath along.

All of the actors interchanged roles, with each taking a turn as an overcoated Isaiah writing on the wall and speaking ancient Hebrew (I later found out). The role changes worked well on reflection but I could not work out the thematic structure of the play until three-quarters in. The different outfits, the stories, Isaiah, were all confusing because the pairing of the characters with the stories took too long to establish. I am not a great wearer of hats but the different characters could have been more readily identified by the audience with hats, as well as the changing of clothing. Hats are more visible and illustrate different identities more clearly. It may have shortened my confusion.

What differentiated this play from a series of monologues, given that I didn’t understand the Isaiah context, was the music. The soloist, Deborah Kayser, the seraphim, sang beautifully and the acoustics of the venue were ideal although the 13^th century language was totally lost on me. (A sample of Kayser’s singing can be heard online) I have never heard a double bass played to such beautiful effect as was played by Nick Tsiavos. The depth of sound from a bow on bass could be felt in one’s chest and how he was able to pluck and stroke those strings at the same time was a mystery until he came into the light in the second half.

Kayser and Tsiavos, the seraphim, were a musical Greek chorus to the tales of grief and frustration. This role was perhaps emphasized by their wings which were effective but initially confusing. Kayser introduced the play in character with words that were cryptic but set the tone for the play.

The staging was effective in its industrial appeal and the use of 44-gallon drums as props and seats worked. Early on the actors slowly rotated these drums to provide a chilling sound which I was hoping for more of throughout the play.

Each character laid out the clothes or uniform of their deceased loved one through the play, providing a useful personal profile that complemented each story. I recall one character had worn her partner’s clothes for three days in a grieving intimacy. She would only relinquish the clothes when they no longer smelt of her partner but now of her.

The play was being performed at the Centre for Theology and Ministry near the University of Melbourne for a limited season and as a lead-in to a major theological conference. The play was supported by the Creative Ministries Network that provides a counselling service for those affected by workplace fatalities.

Prophet & Loss could travel well with its combination of an occupational/social theme, beautiful music and faith. Please look out for it.

Kevin Jones

Harmonising workers compensation

Gabrielle Lis raised an issue in an article for Return To Work Matters that deserves to be seriously considered. The Australian Government is set on a path of harmonising OHS laws through the coordination role of Safe Work Australia. One of the key policies for Safe Work Australia is also to

“develop proposals relating to… harmonising workers’ compensation arrangements across the Commonwealth, States and Territories…”

Wow, this is more of a challenge than harmonising OHS laws. As Gabrielle writes

“Workers and employers don’t always see eye to eye on the issue, not to mention the differing interests of big businesses and small and medium enterprises, and the entrenched positions of the states and territories, who all tend to prefer “how we do things” to how things might best be done.”

Safe Work Australia is going to be dealing with over a dozen worker’s compensation insurers, around half a dozen workers’ compensation bureaucracies and thousands of stakeholders in the compensation, insurance, healthcare and return-to-work sectors.

This challenge is phenomenal and will not fit into any short-term schedule. This challenge differs from OHS in that it directly involves money, millions of it. The negotiations on OHS between government, unions and employer groups will be nothing compared to when the insurance companies move in on workers compensation.

Kevin Jones

(Disclaimer: Kevin Jones is a regular columnist for www.rtwmatters.org)

Audit report says “could do better”

On 3 June 2009, the Victorian Auditor-General released the audit report, CLAIMS MANAGEMENT BY THE VICTORIAN WORKCOVER AUTHORITY. The objective of the audit was to assess the effectiveness and efficiency of VWA’s claims management.

The report found that the current claims management model

“has not substantially improved RTW [return-to-work] outcomes, or the effectiveness of agents’ case management practices”

Although the report notes that the system has not deteriorated.

The report also says

“Agents’ case management practices, on average, were considered generally adequate, however, there is substantial scope for improving agents’ performance.”

“Adequate” is not a ringing endorsement of the system and the workers’ compensation agents should pay particular attention to criticism of their performance.

Safety managers and professionals have been trying to incorporate psychosocial hazards into their safety management processes but it seems that agents are having similar problems:

“Agents did not systematically consider psychosocial barriers to RTW such as attitudes toward recovery, stress, anxiety, workplace issues, substance abuse, and family matters, when assessing the injured worker’s status, needs and risks to recovery. In most cases assessments were narrowly focused on the physical injury and its impact.”

The report notes that many issues raised are already being addressed by the Victorian WorkCover Authority.

Almost the only statements made on the workers’ compensation scheme by the State Ministers over the last decade have related to premium fluctuations, how the business costs of the system are being controlled or unavoidable. However it seems now that the system has only been cruising, but not improving, or keeping up with the contemporary workplace hazards and employee needs.

The white collar public service, in particular, has a high incidence of stress-related claims. The reality of the hazard has been acknowledged through preventative guidance notes from the OHS regulators and the general growth in the work/life balance movement. Yet in 2009, the workers’ compensation agents are criticised for giving this hazard insufficient attention.

Even when an audit report is politely critical, it remains critical and demands attention.

Kevin Jones

WorkHealth concerns increase

Victoria’s WorkHealth program is due to roll-out its next stage of worker health assessments. However, the program has been seriously curtailed by the failure of its funding model. According to The Age newspaper on 18 may 2009, employer associations have begun to withdraw their support compounding the embarrassment to the Premier, John Brumby, who lauded the program in March 2008.

The Master Builders Association will not be supporting the program due to WorkHealth’s connection with WorkSafe. The Victorian Automobile Chamber of Commerce (VACC) thinks likewise. There are concerns over the privacy of worker health records and that data from health checks may affect worker’s compensation arrangements or future claims.

The VACC is also concerned that employers will be blamed for issues over which they have little control – the health of their workers.

Many of these concerns could have been addressed by locating WorkHealth in the Department of Health, where health promotion already has a strong role and presence. It is understood that the funding of WorkHealth from workers compensation premium returns on investment caused the program to reside within the Victorian WorkCover Authority. There has also been the suggestion that WorkHealth was a pet program of the WorkCover board.

The program aims of free health checks for all Victorian workers was admirable and still achievable but the program was poorly introduced, poorly explained, based on a flawed funding model and now seems to be, if not dead, coughing up blood.

Kevin Jones

Statutory liability insurance and OHS penalties

nsca-article-0409-001 Recently I wrote an article for National Safety magazine entitled “Trials and Tribulations”. It came about because I heard about an OHS consultancy that was offering safety management services that included a component of insurance. The insurance was explained to me as covering any OHS fines or penalties that may eventuate for the consultancy’s clients.

This combination of services is very attractive and addresses fundamental OHS questions asked by employers of different sizes – “do I comply?” and “how do I know that I have a safe workplace?”. They’re slightly different questions but ones I come across regularly.

OHS regulators are getting better at helping small business establish a compliance benchmark through the use of compliance codes for some elements of workplace safety management – a semi-return to prescription. However, many small business owner do as much as they can to provide a safe workplace and still get prosecuted by the OHS regulator. This is frustrating and demoralising and in this context an insurance policy is attractive. The insurance would cover any penalties that the business receives even if the incident that generated the prosecution was “unforeseeable”.

The National Safety article includes legal opinions and insurance company opinions that don’t quite fit.

Some of the interviews I conducted with insurance brokers did little to assuage my unease at insurance policies. It seems to me that some insurance policies are taken out unnecessarily while other policies often exempt coverage for the very risks one thought the policy covered. I agree with many insurers who recommend that business insurance is best handled by an experienced risk manager. Sadly many OHS professionals do not have those skills.

In the context of the OHS consultancy, clients may be reassured by such an insurance policy but it should be an unnecessary expense. The consultancy provides a monthly assessment service that steers the company through specific workplace hazards. The consultancy provides some initial OHS advice and resources but no independent audits of the OHS system and the monthly monitors are not trained in OHS.

The consultancy says that following this system will provide compliance, and maybe it does. But even compliant workplaces can have incidents that could generate a prosecution. It is here where the insurance policy should apply.

The monthly assessment system needs to be diligently followed and payments kept current because non-compliance with the obligations of the system could leave an “out” for the insurer.

Statutory liability insurance, particularly for small business, needs to be examined by the OHS regulators. Most regulators approached would not comment on the record about such policies, others were dismissive. The article examines the legal issues further and, sadly, the article is not available online.

If the regulators are truly supportive of small business and OHS compliance for this sector, there should be some guidance on statutory liability issued. But like OHS professionals, regulators are not comfortable with policies that compensate (other than workers compensation). They focus on prevention and prosecution. It’s time to establish a broader source of OHS policy development, one which includes insurance companies, brokers and risk managers.

Kevin Jones nsca-cover-0409

Genetic discrimination at the workplace

In the Men’s Health page (page 59, not available online) of the Australian Financial Review on 16 April 2009 was a mention of a verified case of genetic discrimination in worker’s compensation.

It says that a woman slipped at work and lodged a worker’s compensation application. The assessment tribunal noted that some members of her family manifested Huntington’s disease which, in its early stages, may cause clumsiness and the tribunal requested a genetic test for the Huntington’s gene.

It is a shame that this article was limited to the Men’s Health page as the issues raised have considerable impact on how safety and return-to-work obligations are handled in workplaces.

There are two studies quoted in the article and it is unclear which had the worker’s compensation case quoted. It may have been Genetics in Medicine but blog readers’ help would be appreciated.

Kevin Jones

An interesting short article on genetic discrimination from late-March 2009 is available online.

Category: workers compensation

When employees are their worst enemy.

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Prophet and Loss – review

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Harmonising workers compensation

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Audit report says “could do better”

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WorkHealth concerns increase

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Statutory liability insurance and OHS penalties

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Genetic discrimination at the workplace

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