Published: 23 May 2017
Author: Stringer Clark

Lawyers agree with Ombudsman that WorkSafe needs to protect the injured and vulnerable

As lawyers we strive for fairness. So too does Victorian Ombudsman, Deborah Glass, who addressed the Australian Lawyers Alliance Victorian State Conference and reinforced that she remains committed to a vision for a fairer Victoria.

The Victorian Ombudsman slammed all five WorkCover agents as making seriously flawed decisions particularly in relation to workers suffering long-term incapacity. So much of the language in the complaints her office receives indicates that workers are often too sick and too exhausted to fight back.

The Ombudsman cited examples that were sadly all too familiar for the lawyers in the room. She mentioned a farmer who was catastrophically injured on his farm, and had his weekly payments terminated at 130 weeks on the basis he had a current work capacity. The insurer’s decision was based on the fact that he travelled around the farm with his wife, despite their notes stating that what he was doing was “nothing like a real job.”

In the area of complex claims the current system has failed some particularly vulnerable people. With complex cases representing just 20% of claims but accounting for 90% of the complaints made to the Ombudsman.

The vast majority of claims are neither complex nor contentious: these are rarely the subject of complaint and WorkSafe’s own surveys show a high level of customer satisfaction.

Is the system designed for the injured or the agent?

Growing complaints to the Ombudsman’s office highlighting that these types of unreasonable decisions were being made, prompted an investigation into why the agents were making seemingly unreasonable decisions.

The reasoning that unfolded due to these organisations being commercial enterprises and focused on numbers rather than the people impacted by the decisions. Agents of WorkSafe are required to act in the public interest, however the investigation showed the focus was steered to benchmarks and remuneration.

A former agent staff member reported that injured workers are treated like a number. The key focus of the agents was to meet the benchmarks for remuneration and the messages from management about the need to meet the financial reward benchmarks were constant. 

Internal emails showed the culture of using Independent Medical Examiners (IME) likely to provide reports to support a termination or the use of further requests framed differently to get the support they require for a termination from an IME.

It was clear from the investigation that insurers were objecting to claims in the hope that fragile claimants would resist the stress of fighting their case.

Positive change is underway to improve well being for Victorian workers

The parent of an injured apprentice worker emailed the Ombudsman and stated:

“I am more than convinced that this system kills people. It isolates them, makes them feel worthless, fearful for their futures, and takes away their dignity and their livelihood.”

With such emails in mind the Victorian Ombudsman continues to monitor the way WorkSafe agents are making their decisions. WorkSafe has adopted her recommendations and we hope to see improvement in the way agents approach claims.

Meanwhile, the consensus amongst Personal Injury lawyers at the conference was that certainly no change has been seen to date. In the meantime it is important we continue to fight for our clients to have agents decisions overturned and to continue to make complaints to the Victorian Ombudsman where the agents act unreasonably.

Meanwhile, the teams at Stringer Clark and RCT join the Ombudsman in creating a fair future for those who are injured and vulnerable. We are proud to offer advice and advocate for our clients and to help them fight for what they are entitled and for a future that promises hope and dignity.