Draft Code of Injured Workers Rights

The IWSN and VTHC welcome the Victorian Government’s acceptance of the recommendation from the Independent Review into Complex Workers’ Compensation Claims Management to develop and publish a Code of Injured Workers’ Rights. We note that the Code should identify the rights of workers and the corresponding responsibilities of WorkSafe, as well as the process by which rights may be enforced. We submit that this Code incorporate the following principles to ensure that the Code delivers in improving the experience of injured workers and makes public WorkSafe’s commitment to person-centred service standards.

We note also that this Code must apply widely to all organisations and individuals that have interactions with injured workers through the Victorian Workers’ Compensation Scheme, including WorkSafe agents, self-insurers (collectively referred to hereafter as insurers) as well as the specialists engaged by insurers to assess injured workers. We note that this approach will require legislative amendments to allow WorkSafe greater oversight of self-insurers.

We have drafted an example of a Code of Injured Workers’ Rights attached after the principles. In accordance with the suggestion made by Peter Rozen QC in his Report, our Code also considers the New Zealand Code of ACC Claimants’ Rights. It also draws from the National Standards for Disability Services which focuses on person-centred approaches for people with disability under the National Disability Insurance Scheme.

Below are the principles on which our example Code of Injured Workers Rights is based on.

Principle 1: Injured workers be treated fairly and with dignity and respect and have their issues and concerns addressed in a timely manner

The Attorney General’s Office review of Claims Management by the Victorian WorkCover Authority which found 32 per cent of case managers in the Victorian WorkCover scheme had less than the minimum two years of claims management experience. The turnover of staff and lack of experience and training points to a skill shortage across all insurers in the scheme. A focus on training and retaining case managers will benefit the scheme and injured workers.

WorkSafe must ensure that interactions with injured workers are conducted fairly and expeditiously and offer the injured workers dignity and respect, recognising:

that many injured workers are under significant physical, emotional, social and/or financial strain.
that injured workers have often waited weeks or months for a response to their concerns in turn causing further psychological injury.
continuity and stability are important for the effective and efficient rehabilitation of injured workers. For example, injured workers with PTSD attest to the trauma of reliving their injuries every time they are assigned a new caseworker.

Principle 2: Case managers must consider their clients background and injuries in all their dealings

Insurers and the case managers they engage to work with injured workers should be competent, empathetic and qualified with appropriate mental health training. All injured workers should have equitable access to the scheme and the scheme should consider disability, age, gender, culture, values, beliefs, heritage, language, faith, sexual identity, relationship factors, or other relevant factors. Communicating and accessing information should be accessible to all people regardless of ability.

Injured workers need to have the right to request appropriate case managers and examiners who make them feel comfortable. For example, a female injured worker who has suffered from gendered violence in the home and in the workplace was forced to speak about her medical history and information to male IMEs and case managers compounding her mental trauma and impacting on her ability to communicate aspects of her case accurately. Her request for female case managers was denied.

WorkSafe must ensure that case managers are suitably qualified and trained, and that insurers act quickly in response to complaints about the suitability or appropriateness of a case manager.

Principle 3: Injured workers must receive effective and efficient treatment for their comfort and rehabilitation

Being injured at work can be an extremely traumatic experience. A failure to provide timely care, instead for example seeking second opinions or disputing the interventions recommended by treating doctors delays any return to work. It can even lead to secondary injuries more incapacitating than the initial injury. Often, an injured worker's only interaction with the scheme is through their claims manager. Consecutive investigations and reviews of the Victorian workers’ compensation scheme have acknowledged the immoral and unethical behaviour conducted by insurers with the goal of forcing injured workers to abandon their claims rather than provide treatment.

WorkSafe must ensure that insurers act quickly and place the treatment and rehabilitation of the injured worker at the centre of the decision-making process.

Principle 4: Injured workers must be empowered to speak up about their treatment plans and have access representation and support regarding the management of their claim

A strong relationship between an injured worker and their chosen medical practitioner and allied health workers is key to effective recovery and rehabilitation. The Code needs to recognise the key link between injured workers and their chosen medical practitioners and allied health network. Injured workers should be allowed a support person, advocate or legal representative with these rights communicated to them at the beginning of their claims process. An injured workers support person, advocate, and legal representative should be welcomed into all aspects of the planning, decision making, and claims process. The important role of families, friends, carers and advocates must also be recognised. WorkSafe must have an obligation to encourage and facilitate representation and support.

Principle 5: Injured workers need to participate in surveys to collect of qualitative and quantitative data after each IME appointment. WorkSafe must review this data periodically and investigate those IMEs with metrics falling below the mean.

The Victorian Ombudsman in their investigation of the workers’ compensation scheme found selective use of Independent Medical Examiners (IME), with claims managers choosing certain IMEs with a track record of recommending a claim be terminated or rejected. Similarly, injured workers tell stories of IMEs examining the wrong limb, failing to be familiar with their case history, or talking over and disparaging them when they try to speak up in the consultation to explain their case history. This approach to injured workers must be eliminated. Collecting quantitative and qualitative data empowers workers to give feedback on those people assessing their claims. It would also allow WorkSafe to more easily identify, investigate and if necessary, remove IMEs that act inconsistently with the principles contained in the Code or consistently return scores below that of their peers.

Principle 6: Injured workers must be entitled to access their case files and all information their insurer has gathered about their claim.

Injured workers should have a right to quickly and easily access medical and case file information their insurer possess about them and their claim. Currently, the only avenue for injured workers to access their personal claim records, files, notes, recordings and other documentation is through filing a Freedom of Information Request. This process is not made clear to injured workers and is made even more challenging for injured workers with disabilities, where English is their second language, or low levels of literacy.

WorkSafe must ensure that the dossiers that insurers create on each injured worker be handed to that worker upon their request.

Principle 7: Surveillance by private investigators at the behest of WorkSafe and insurers must be reviewed

Injured workers have the right to privacy, and this should be protected throughout the claims process. Injured workers report being followed and photographed when out shopping or visiting friends, and even having investigators taking photos through the windows of their houses. This includes photos of their family including young children. This causes stress, anxiety and significantly impacts injured workers’ mental health. The privacy of injured workers and their loved ones should be protected. Agents should not be able to engage with private investigators who unlawfully and unethically breach injured workers privacy.

We note that WorkSafe already has a code providing practical guidance on how private investigators comply with obligations under Victoria’s workers’ compensation legislation when providing private investigation services to WorkSafe or its authorised representatives. We note also and support recommendation 15 of the Review and the Government’s acceptance in principle and request that WorkSafe consider greater controls on the use of surveillance, balancing the impact of potential misuse against the risk of fraud in the Scheme.

It is our view that this must include WorkSafe Victoria investigating claims of inappropriate conduct of private investigators engaged by WorkSafe and insurers with a view to having their accreditation revoked and individuals referred to prosecution should a view be formed that the investigator has engaged in unlawful conduct.

Principle 8: Injured Workers should be supported to engage with and participate in their community

Injured workers should be afforded the dignity of community participation and inclusion. A connection with their family, friends and chosen community is vital to a civil society and strong injury recovery. Ultimately, the scheme should strive towards enabling injured workers access to a quality of life that considers health, social affairs, personal relationships, family and dignity. A connection to work, learning, social activities and community connection should be respected and facilitated. The Code should recognise and encourage the benefits of community participation and inclusion.

Principle 9: A collaborative approach to return-to-work obligations should be adopted

Injured workers should not be forced into work that is unsafe, unsuitable, or otherwise inappropriate. Injured workers report that insurers have pressured them to accept work that is inconsistent with the restrictions placed upon them in their certificates of capacity. Sometimes this is complicated by inconsistent medical opinions from IMEs about what may be appropriate. The Code needs to place more weight on the right to question work that the injured worker feels is inconsistent with their treating practitioners’ medical opinion. In cases where it is unlikely that the injured worker will ever be able to return to their pre-injury role even after rehabilitation and recovery, injured workers should be better supported in retraining into a role or industry more suited for their ability and interests.

Principle 10: There must be consequences for a breach of the Code

At present the complaints and feedback process is adversarial, stressful and difficult for injured workers to access. Additionally injured workers report a fear of retribution by their insurers for raising a dispute.

The Code must have a complaints process with timeframes for dealing with complaints. It must be fair, transparent and clear where injured workers, their family, friends, carers and advocates can provide feedback, make a complaint or resolve a dispute without fear of adverse consequences. Where injured workers are mistreated by their insurer, injured workers should be able to request to change insurers or have their claim directly managed by WorkSafe Victoria.

Injured workers should be provided with fair, affordable and accountable avenues for compensation when their rights in the Code have been infringed upon. This information should be provided to the injured worker at the beginning of the claims process. Any breach of rights should be dealt with promptly and transparently. When creating the compensation process, the Committee should analyse the Scheme for Compensation for Detriment cause by Defective Administration (CDDA Scheme). The CDDA Scheme provided for a Non-Corporate Commonwealth Entity to provide compensation to those who have experienced detriment because of defective administration from a Non-Corporate Commonwealth Entity. This principle is vital to the Code and the scheme to allow for accountability, fairness and justice for injured workers.

Finally, WorkSafe must act against those individuals and organisations who breach the Code. Such penalties may differ depending on the organisation and the severity and frequency of breaches, but the most serious consequences should for example include:

losing authorised agent status (WorkSafe agents)
losing self-insurer status (self-insurers).
Removal of ability to provide services funded by the WorkCover scheme (IMEs, private investigators etc)

Conclusion

A Code of Injured Workers’ Rights is a fundamental step in recognising the drastic improvements that must be made to the treatment of injured workers in this scheme.

Example Code of Injured Workers’ Rights

This Code applies widely to all organisations and individuals that have interactions with injured workers though the Victorian Workers’ Compensation scheme.

Right 1

You have the right to be treated fairly and with dignity and respect, with freedom from harm, neglect, abuse or violence.

We have a duty of care to you.
We will treat you with dignity, respect, honesty and courtesy.
We will recognise that you may be under physical, emotional, social, or financial strain.

Right 2

You have the right to have aspects of your diversity considered and respected in all aspects of the claim process.

We will be respectful of, and responsive to, Aboriginal and Torres Strait Islander culture, values, and beliefs.
We will be respectful of, and responsive to, all cultures, values, and beliefs.
We will create and deliver service plans that consider diversity including disability, age, gender, culture, values, beliefs heritage, language, faith, sexual identity, relationship status and other relevant factors.
We will work with you to identify culturally and gender appropriate case managers to support your claim as required.

Right 3

You have a right to be supported in an effective, efficient, person-centred, flexible workers’ compensation scheme.

We will act with the needs of the injured at the centre of each claim.
We will provide you with a dedicated case manager with the appropriate mental health training and empathy.
We will hire and train competent, empathetic, qualified employees with appropriate mental health training.
We will provide a feedback, learning, reflection process that supports continuous improvement of the scheme.
We will use person-centred approaches and the active participation of you, your advocates, families, friends, and carers to review policies, practices, procedures, and service provisions.
We will, to the best of our ability, provide local, community services for you to access.
We will make decisions that are evidence-based, transparent and capable of review.
We will review the scheme and relationships with private entities as part of continuous improvement of the scheme.
We will not engage with third-party private entities that consistently infringe on your rights outlined in this Code.
We will not financially disadvantage you through the claims process.
We will settle disputes in a fair and reasonable timeframe and in accordance with the principles of procedural fairness and natural justice.

Right 4

Subject to the WIRCA Act, you have the right to a support person(s) and legal representation and/or advocacy in all aspects of the claim process.

We will welcome you and your support person(s) provided that the safety of all involved can be assured.
We will welcome you and your support person(s) in all aspects of planning and decision making.
We will provide you with information on support people, organisations and networks at the start of your claim process.
We will welcome the attendance of a legal representative and/or advocate in all aspects of the claim process.
We will support you with information and access to legal advice and/or advocacy.
We will recognise the role of families, friends, carers and advocates in safeguarding and upholding your rights.

Right 5

You have the right to effective communication.

We will communicate with you openly, honestly, and effectively.
We will respond to your questions and requests in a timely manner.
We will provide you with an interpreter when necessary and reasonably practicable.
We will provide information in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost.
We will accept and facilitate the use of sign language, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of your choice by persons with disabilities.
We will urge private entities that provide work on behalf of the Authority to provide information and services in accessible and usable formats for persons with disabilities.

Right 6

You have the right to be fully informed.

We will provide information on how to make a claim for cover and entitlements.
We will keep you fully informed in all aspects of your claim process.
We will provide you with full and correct information about your claim, entitlements, obligations, and responsibilities.
We will inform you if your entitlements change.
We will give you information about how we provide services, and how to access them.
We will discuss expected time frames with you.
We will inform you of your review and appeal rights under the Act.
We will respect your right to receive a second opinion on your health or prognosis and will not make decisions inconsistent with medical opinion.

Right 7

You have the right to access and amend personal information.

We will inform you of your rights under this Code and other legislation.
We will inform you of your rights to access and amend your personal information.
We will ensure a transparent, simple, effective and clear process for you to request your claim records, files, notes, recordings and other documentation.
We will provide your claim records, files, notes, recordings, and other documentation to you when requested.
We will respect your right to have your claim records, files, notes, recordings and other documentation independently reviewed.

Right 8

You have the right to have your privacy respected.

We will respect your privacy.
We will comply with all relevant legislation relating to privacy.
We will give you access to your information, in accordance with legislation.
We will respect the privacy of your family, friends, colleagues, and other peers.
We will report any breaches of your privacy to the Authority as soon as we become aware of it.
We will not engage with any private entity that subjects a person to arbitrary or unlawful interference with your privacy, home or correspondence.
We will not provide your medical, personal, and other information without your prior, express consent.
We will keep personal information confidential and private.

Right 9

You have the right to complain and have your views considered.

We will work with you to address problems and concerns.
We will inform you about options available for resolving problems and concerns.
We will inform you about the complaints process, and the normal time frames for dealing with complaints.
We will respect your right to associate with people or entities that you consent to.
We will respect your request to change insurers or have your claim managed directly by the Authority.
We will provide a fair, transparent and clear feedback and complaints process in each step of your claim process.
We will provide support strategies to explain and understand decisions that are made.
We will actively support you, your family, friends, carers and advocates to provide feedback, make a complaint or resolve a dispute without fear of adverse consequences.
We will actively resolve complaints with you and if requested, together with your support person, legal representative, family, friends, carer or advocate in a proactive and timely manner.
We will listen to you and consider your views.

Right 10

You have the right to informed consent regarding the services and supports you receive. You have the right to self-determination and decision-making regarding your medical treatment.

We will respect your right to consent regarding medical treatment.
We will recognise the important relationship between you and your chosen medical practitioner and allied health workers
We will collaborate with your medical practitioner and allied health service providers in planning your services and supports.
We will work with you to choose an Independent Medical Examiner (IME)
We will investigate all complaints of improper or unprofessional conduct undertaken by IMEs

Right 11

You have the right to freedom of expression without fear of repercussions on your claims outcome.

We will listen to your feedback.
We will not treat you differently because of the feedback you have provided.
We, and any associated private entities, will not disadvantage your claim and entitlements because you have exercised your freedom of speech.
We will recognise and promote individual freedom of expression.

Right 12

You have the right to participation and inclusion in public and private life with a connection to your chosen community.

We will recognise your right to participate in public life.
We will work with you to strive towards a quality of life that considers health, social affairs, personal relationships, family and dignity.
We will not associate with private entities that engage in bullying, intimidation and harassment.
We will actively promote a valued role of connection to family, friends and chosen communities.
We will understand, respect and facilitate individual interests and preferences in relation to work, learning, social activities and community connection.
We will understand, respect, facilitate and promote participation and involvement in communities and recognise the mental and emotional benefits this has on recovery and healing.
We will work in partnership with other organisations and community members to support individuals actively participate in their community.
We will use strategies to promote community and cultural connection for Aboriginal and Torres Strait Islander people.

Right 13

You have the right to safe and appropriate work and to refuse unsuitable work.

We will ensure that your return-to-work plan considers your mental, physical, and emotional capacity.
We will ensure that your employer provides reasonable accommodation for your disability in the workplace.
We will support your request to be retrained into employment that will not have negative consequences for your health and recovery.
We will ensure that your return-to-work plan is created in accordance with the medical opinion of your treating medical practioner and allied health professionals.
We will ensure that you are supported to return to work.
We will work with your employer to provide reasonable accommodations for your mental, neurological and physical disability.

Right 14

You have the right to fair compensation when your rights have been infringed upon.

We will provide a fair, affordable, and accountable compensation process when these rights have been beached by the Authority, representatives of the Authority, private entities associated with the Authority, and private entities that provide contracted services for the Authority.
We will address any breach of rights promptly and transparently.

FAQ

What is a Code of rights?

A code of rights protects the basic rights and freedoms that people have. A Code of Injured Workers Rights will be a massive win for injured workers across Victoria. It will set out the basic values and freedoms of injured workers that should be protected. It will help us hold insurance agents, WorkSafe, Independent Medical Examiners, and others accountable for the way they treat injured workers.

The most well-known code of rights is the Universal Declaration of Human Rights created by the United Nations. This document sets out the fundamental human rights all human beings should have, regardless of their age, nationality, race, religion, gender, sexual preference or other status. There are many other codes of rights.

Why has the Victorian Government committed to this?

The Victorian Government has committed to creating a Code of Injured Workers Rights because the recent Rozen Review into the workers compensation system found that WorkCover was letting down injured workers, particularly long term injured workers. One of the review's 22 recommendations to fix the system was for the creation of an Injured Workers Code of Rights. There have also been 2 other Ombudsman reports into the WorkCover system highlighting some of its major shortcomings that the Victorian Government has been called to act on.

Are there other examples of a Code of Injured Workers’ Rights?

Yes. New Zealand does have a Code of Accident Compensation Claimants (ACC) Rights. This Code applies for anyone claiming under their Injury Prevention, Rehabilitation, and Compensation Act through the ACC. In his recommendations, Peter Rozen QC specifically mentioned this code as an example of what was possible. We are using this Code as inspiration for our Code of Injured Workers’ Rights. Click here to view the New Zealand Code of ACC Claimants’ Rights.

Why is this important?

This is important because right now too many injured workers are bullied and intimidated by the systems. A code that lists our fundamental rights and principles to push back and make sure injured workers are treated fairly under the workers’ compensation system. That is why it is so important to share your voice. We need to make sure the code puts injured workers, not insurance companies, at the centre of the WorkCover process.

Don’t injured workers already have rights?

Like all Victorians, injured workers have rights under several different laws but there are significant barriers to exercising these rights. Workers’ compensation can involve a lot of conflict between workers and their claims managers, causing mental stress and wearing workers out. . A code of injured workers’ rights can go further in providing specific protections for injured workers and the discrimination they face.

Draft Code of Injured Workers Rights