The Injured Worker - the person most often overlooked in a compensation claim

Wow! What an eventful 24 hours it has been for the workers comp industry, particularly for NSW.

The following is an excerpt from my book “Compo: A Rehabilitation Consultant’s Journey. First published in September 2019

Oh! The Humanity

“What do you do?” I was at a bar talking to one of my friend’s workmates and, after discussing the weather, the conversation had progressed to work.

“I’m a rehab consultant. I work in worker’s comp,” I replied.

“Oh, that must be really hard, working with all those dodgy people,” he commented.

*****

I AM HUMAN and, more than likely, you are human too. Every person involved in the compensation system is a human. So, why does it seem to me that humanity is the thing that is missing?

Most people have a visceral reaction when talking about workers compensation. They believe that the workers who have been injured are liars or cheats, that their motivations and intentions are sinister and that they are trying to take advantage of the system, the insurer or their employer.

Although the system is designed to be helpful and to support injured workers with their recovery and rehabilitation, some people who work within the system seem to be suspicious of one another.

Of the hundreds (possibly thousands) of cases I’ve been involved in, I can only recall a handful of cases where I, without a shadow of a doubt, could say that the worker was consciously and deliberately manipulating the system for their personal or financial gain.

In my experience, the workers usually just want to get better. They want their pre-injury lives back and they want their body to work as it once did.

The stigma of compensation is embedded into our society, whether it’s because there have been one too many stories on A Current Affair or Today Tonight about a “dodgy guy on compo” or that we, as humans, don’t like the thought of someone getting something for nothing.

Trust me. Compensation is often both a road to poverty and the cause of the degradation of an injured worker’s mental and emotional wellbeing. It begins with an injury that usually affects the worker’s ability to look after themselves and be independent. I’ve met workers who can’t put on their own bra or can’t wipe their own bottom because of their injury. Nobody asks for that.

An injured worker once told me that he had to down a bottle of wine before having sex with his wife to help him numb the pain in his lower back. I’ve sat and listened to workers who have cried as they told me about how they can’t carry and hold their own grandchildren.

I supported one injured worker who, for two years, had been planning a European holiday to celebrate her fiftieth birthday with a group of friends. Unfortunately, she injured her knee just weeks before the holiday. She had a hard time walking around the monuments and exploring the cobbled streets of Venice, and even had to cancel some experiences because she was physically unable to participate in them.

Injured workers feel happiness, but they also feel hurt, frustration, anger and pain – both physical and emotional. And like everyone else, they seek satisfaction in their lives and want to enjoy their life. They didn’t ask to be injured.

I believe it’s often forgotten that the core element of the compensation claim is the injured worker. The system is designed to support their recovery so that they can return to spending time with their families and friends and get back to their interests and hobbies.

Intentionally or not, the compensation system can strip away an injured worker’s sense of self, their self-esteem and their self-worth. It can remove their ability to control their own lives or live in a way that is on their own terms.

I HAD TWO car accidents in 2017, both of which were the fault of another driver. During the first, I was driving from my home office to another office. As I turned right at a large intersection, I had to stop suddenly as a truck had blocked the intersection and my turning lane. The car behind me then slammed into the back of my car.

We were able to pull over and have a chat with each other. It was a rainy day and we were standing underneath an overpass. Although I spoke with the other driver and offered my details, she refused to give me hers and insisted on calling her husband to come to the scene first. I was shaken and agitated by the whole situation, so I decided to call the local police station. The officer on the line asked to speak with the other driver. They explained to her that she needed to provide me with her details but she continued to refuse.

Finally, her husband arrived and we exchanged details. I got back into my car and drove to the office. A few hours later, the pain in my shoulders and neck started. I felt I could manage it but that I should go ahead and report it to my insurer given that it was technically a travel claim. This is how I remember the conversation.

“Hi. Welcome to ABC Insurance*. How can I help you?” a woman answered.

“Hi, I’m reporting an incident. I don’t need to claim anything, I just want to report it,” I replied.

“Yes, and what happened?”

“I was driving from my home office to another office. I’m self-employed, you see, and have multiple offices.” As I told her my story, her tone changed, and she became quite abrupt and impatient.

“We need to investigate the incident. Given that you were driving from home to work, it’s not a workers compensation travel claim,” she said. I then repeated my account and clarified that I was traveling between offices for work and told her that I understood it to be a travel claim.

She became even more impatient and her tone became stern. She repeated that the incident needed to be investigated.

At this point, I decided to give up. I didn’t think I needed any treatment and I didn’t need any time off work. I decided, knowing what I knew about the system, that it would be easier to manage the symptoms myself.

A few hours later, when I reflected on the conversation, I became angry. I was angry that she didn’t bother to ask if anyone was hurt. I was angry that she immediately concluded that the claim needed to be investigated. I was angry that she made me feel like a criminal and that she didn’t offer me any type of support. That experience made me realise, firsthand, what it was like to be an injured worker – being scrutinised and questioned as if I had done something wrong. If I felt that way, as a person who had been in the industry for almost fifteen years, then how awful would it be for someone who hadn’t had any exposure to the world of compensation.

From the date of injury, workers are shuttled and pin-balled from doctors to specialists, physiotherapists to exercise physiologists, return to work coordinators to injury management advisors, and rehabilitation consultants to independent medical examiners.

They are told by either their medical team, their employer, the insurer case manager or by a rehabilitation consultant that they must attend medical appointments, treatments, assessments and meetings – and they aren’t usually given any choice in the matter. Everyone around them is making decisions about them and for them.

These include:

·      what their work capacity is

·      what medical restrictions they have

·      what treatment they should (or shouldn’t) receive

·      how often they should receive treatment

·      what their working hours and days should be, and

·      when they can attend appointments

And they are expected to fit all of these new appointments into their already busy lives.

I once worked with an injured worker who had three school-aged children. Before her injury, she would take them to school, go to work, pick them up, head home, make dinner and put them to bed. After the children had gone to bed, she would wash the dishes, clean the house, do the laundry, and pack lunches for the next day before she collapsed on the couch, exhausted. This worker’s normal life was timed to perfection. She told me that she would read emails and school newsletters while sitting on the toilet because it was the only free time she had left.

“You must attend treatments in your own time and outside of working hours,” the insurer’s case manager told her. We joked that she could attend physiotherapy while her children played in the McDonald’s playland next door. The children weren’t tall enough to reach the adult lock, so we reckoned they should be fine for about 45 minutes, as long as another parent didn’t let them out.

Fortunately, this worker had a wonderfully supportive employer. The employer allowed her to leave about one hour before her normal finishing time, to attend her treatments and appointments, and didn’t financially penalise her for it either.

Unfortunately, in my experience, most employers are unwilling to change a work schedule to allow injured workers to attend treatments. This usually causes resentment between the worker and the employer and, usually, a delay in recovery. Instead of exploring a shared solution, the blame usually lands on the worker who is labelled as “non-compliant” and accused of not actively participating in their recovery or rehabilitation.

In my experience, there is always a reason why a worker is not attending treatments, not recovering as expected, being distant or argumentative, not responding to calls or not appearing to be completely participating in their rehabilitation plan.

One reason, I surmise, is that they don’t feel supported or don’t feel like they have any control over their own situation. With everyone around them telling them what to do, they may believe that the only thing they can control is their level of participation and interaction.

“TELL ME WHAT you know about your diagnosis?” I asked Anthony*, a worker that I was supporting. He was a carpenter who had injured his knee after he tripped over some rebar on a construction site.

“Um, something about the cartilage in my knee,” Anthony responded.

“Has your doctor or physio explained to you what’s going on with your knee?”

“No, not really. I just do what I’m told,” he conceded.

I firmly believe that the injured worker needs to be involved in every aspect of their claim, rehabilitation, treatment and return to work. They should always be at the centre of the claim.

Too often, I’ve seen (and continue to see) doctors and treatment providers failing to educate their patients. They do not offer simple explanations about the diagnosis, movement patterns, pain, treatment modalities and the goals of treatment. The medical team often forgets that their patient is unlikely to be familiar with medical terminology and that this is likely to be their first time experiencing a significant injury or being involved with a compensation scheme. Worse still, the medical team doesn’t always believe that patients should be educated. They often believe that patients should simply trust them.

I spend much of my time with an injured worker, ensuring that they understand their injury and diagnosis and what to expect from the compensation system. I tell them about the challenges they may face, the limitations of rehabilitation and of the compensation system. I also educate them about what to expect from their treatment providers, doctors, specialists and their entire medical team. I advise them about their rights and responsibilities. I especially tell them about their right to choose their medical team, and yes, even their rehabilitation consultant. I discuss with them the rights and responsibilities of their insurer, the case manager, employer, and any other stakeholders involved in their claim.

I ask them what’s important to them and what they think their path to recovery will look like. One of my main aims is to empower workers to take control, be responsible for their situation and be an active participant in their claim.

I encourage them to ask questions (and lots of them), to understand the challenges of recovery from injury and, specifically, the challenges of recovering within a compensation scheme. I ask them to explore different solutions, provide feedback and make suggestions. I ask them to challenge their medical teams, their insurer case managers, employer and, yes, even me. I ask them to hold their support team accountable and to make sure that whatever time and energy they spend in treatments, in medical reviews, at work, talking to the insurer, meeting with me and completing paperwork is the best use of their time. This time should only be spent to move them towards recovery and a return to their life before injury.