A letter to the Victorian Ombudsman – powers unwilling to investigate workcover cruelty

A severely psychologically injured worker kindly shared a letter she wrote to the Victorian Ombudsman. It’s one of many complaints that she took to many bodies that are touted as protectors of the little guy”, she writes. “Guess what, none of them measured up”. Again this story highlights the impact that adversarial workers compensation systems has on the mental health of injured workers.

The powers that be are not willing to investigate the cruelty of Workcover

The injured workers letter to the Victorian Ombudsman

Dear Ombudsman

I wish to ask for an independent review of the performance of the Worksafe system of worker’s compensation in Victoria as it has applied to my claims as an injured worker. Since [year], I have suffered workplace injury requiring workers compensation a total of three times. All of my injuries have been the result of unreasonable stress in the workplace, and on each occasion of need, the worker’s compensation system has exacerbated my injuries further. In each of my instances of injury, bullying was the main cause.

I am particularly concerned with identifying the bullying of injured workers that, in my experience, occurs systematically within Worksafe. This bullying is built into the culture of Worksafe.

It is expressed in the laws and procedures that govern worker’s compensation, and it is exercised regularly by the agents of Worksafe. Of course, not all Worksafe agents intentionally act as bullies.  Yet, it is my experience that many of them do.

As an injured worker, I have been bullied by the insurers who managed my claim; by Independent Medical Examiners appointed to assess my capacity to work; and by Worksafe lawyers pursuing a cheap buyout from my claim. I have further been discriminated against and bullied by the laws and provisions of Victorian workers compensation which enable and encourage bullying by employers, insurance agents and other agents of worker’s compensation.

I know that I am not alone in my experience of Worksafe bullying. Over the years of my claim, I have personally known several other injured workers who shared similar experiences of the system, and I have heard of many others.

 What is Bullying

In pursuit of its duty to eradicate bullying from Victorian workplaces, Worksafe has defined bullying as:-

“repeated unreasonable behaviour directed towards an employee or group of employees that creates a risk to health and safety.”

 

My Worker’s Compensation History

  1. My first claim for workplace injury due to stress and bullying was lodged in December [year]. From [year to year] had been employed full-time as a community youth worker in the Community Youth Support Scheme (CYSS) in [city], Victoria. Prior to this appointment, I had been a Secondary Teacher for 5 years. In [year] I became ill as the result of stress at work. The stress and my resultant incapacity for work were caused by long term bullying from the funding body, and from my employers.

For a long time, I was seriously ill, both physically and mentally.

[Two years later] I was bullied out of the worker’s compensation system by a series of unreasonable actions on the part of the insurer.

Firstly, the insurer instigated surveillance on my person. This was an unreasonable act. My illness related to stress and immune dysfunction. The immune dysfunction was measurable. My incapacity for employment was regularly certified by my doctor who had known me as a patient for some years. It was unreasonable to assume that surveillance would reveal useful data under these conditions.  Given the invisibility of my injuries, surveillance could only yield useful data if it showed me to be secretly engaged in employment.

To decide to use surveillance required the insurer to assume that both I and my doctor were lying about my condition. To assume that I was a liar was to assume a position of bias in relation to the decisions being made about me.

The insurer also acted unreasonably when they relied on shoddy surveillance practices and false data to justify terminating my claim. They in fact decided that because I made regular visits each week to a particular address, that I must be secretly employed there. The address in question was actually that of a large Workcare rehabilitation centre!

I did manage to question the decision and have it overturned.

However, I became quite paranoid after the surveillance episode. I kept worrying about being followed and about how intrusive the breaches of my privacy had been.


A few months later, when the insurance company again acted unreasonably in denying my request for retraining assistance, I opted out of the system in favour of managing my illness without the insurer’s interference.

I remember feeling very strongly that I would never recover under the watch of such a punitive and irrational system.

Choosing to opt out of the system meant giving up my worker’s compensation income, and applying for sole parent benefit, as I still had no work capacity. The pension was only half the rate of payment I was receiving under Workcare.

Such was the intensity of my reaction to the mindless cruelty that I felt from the workers compensation system at that time.

I was psychiatrically vulnerable for several years after this, and did not work again for many years.  In fact, I have never again been sufficiently well enough to return to full time work. I do still have several documents from that claim, which can provide support to my charges that the insurer repeatedly acted in unreasonable ways in response to my claim for worker’s compensation, and assistance with returning to work.

From [year to year]I again experienced a series of stressful events and bullying in my workplace that caused me to need some time off work to recover. At this time, I was a part-time worker and single parent earning a wage which when added to my pension entitlement barely covered my weekly expenses. Under these conditions I applied for workers compensation only when it became clear that I would need a substantial amount of time off work to recover. I needed Workers compensation to provide me with financial support and access to medical and like services. I submitted my application in early September [year], back-dated to the point at which I had first become unable to work.

It is my experience that from the time I engaged with the current Victorian worker’s compensation system I was repeatedly treated in unreasonable and cruel ways that ultimately made my workplace injury far worse.

Initially the insurance agent lost my file and denied my claim before doing an investigation of my claim’s merits. As a result of this negligence on the insurer’s part, my claim remained unresolved until a Medical Panel decision in February [year].  Meanwhile, in January [same year], I returned to work at half my normal hours and was paid at half my usual rate of pay. I did so without psychological support and treatment as I could not afford it.

I returned to what proved to be a hostile workplace, where both my employers and my colleagues appeared to have the intention of driving me from my employment. I believe they wished to do this because during my leave (July year before) I had assisted a friend who was working casually for the organisation to document her complaint of bullying in the workplace. Staff accused me of disloyalty to them and the organisation for assisting with this complaint, yet I had simply followed workplace policy and procedure. My friend’s complaint was genuine and there was evidence to support her. This complaint was not addressed by the organisation, and was still festering when I returned to work in January [year].  It was my intention, in returning to work, to have this complaint subjected to proper process within the organisation. This was not to be, as from the moment I indicated a desire to return to work, I began to meet with resistance and then outright bullying from my employers and colleagues. Amongst other strategies, my employers used Worksafe practices and processes to alienate me from my employment. Appendix 1 lists many of these practices and describes how they affected my well-being. Suffice to say that whilst I did my best to resist what was happening, my psychiatric health quickly began to crumble.

My friend saw what happened to me upon my return to work. She had suffered through her life from Bipolar Disorder, but had generally managed to remain in employment for quite long periods of time between episodes. After my breakdown she became quite destabilised and in a move that was totally out of character for her, she shifted to Canberra and then soon after that, to Wollongong. In March [year later], she returned briefly to Melbourne. She then travelled to Alice Springs where she subsequently disappeared. She has not been heard of since then, and police searches have failed to find her. This is a tragedy that has contributed to my ongoing difficulties in recovery.

As for me, the events listed in Appendix 1 culminated in my suffering a severe nervous breakdown and losing all work capacity.

You will note that during this period, I was bullied by my employers, my colleagues and the Worksafe system in concert
.

This raises issues for me in relation to conflict of interest that is built into the system, and that inevitably works against the interests and rehabilitation of the injured worker. How can the one Worksafe Agent be invested with the duty to deal with the interests of both the injured worker and the employer of the injured worker? Questions of negligence and malice often arise in relation to workplace injuries thus placing the interests of employers and injured workers in opposition to one another.

 Injured workers, and particularly those with psychiatric injuries, are at a disadvantage when having to deal with this kind of adversarial system. When you’re unwell you need peaceful and well supported recovery time. Worksafe gives you exactly the opposite.

When I applied for Workcover for the second time I was assessed by the same Independent Medical Examiner who had assessed me in relation to my first claim. The Independent Medical Examiner bullied me during the interview and produced a very biased report about my health situation.

I suffered a long period of severe depression and suicidality consequent to his assessment and the insurer’s denial of my claim.

For a long time I was I was rendered incapable of coming to grips with the many complex issues surrounding my experience with this IME. Indeed, I have found that complaining is always difficult for me, and often impossible. The very act of attempting to collate a complaint causes an intensification of the symptoms listed in Appendix 2.

Two and a half years later, I made a detailed complaint against this Medical Examiner to the Medical Practice Board of Victoria and to Worksafe Victoria. This complaint was only partially addressed by the MPV, and substantially remains unresolved. The IME stated in his response that he had not bullied me but simply been rigorous in his examination. He also declared that he needed to act in this way to prevent me from lying to him and covering up things I didn’t want him to know. I do not believe that there was anything reasonable about his presumption that I was a liar and would need to have secret details rigorously extracted from me.

This time, it was ten months before my claim was finally resolved by another Medical Panel opinion. It seems to me highly unreasonable for a system to be constructed in such a way as to relegate a sick worker to go without their normal income for any period, let alone such a lengthy one. I believe that it was this period of additional stress, the long denial of medical and like services, and the combined effects of all the bullying in the system that created in me the serious injury and my ongoing incapacity for work. It also created the conditions that forced me to sell my equity in my home and move into the rental market.

By the time my claim was accepted, my “weekly compensation” had reduced by law to 75% of my part-time wage. It is difficult for me to comprehend how anyone could justify as reasonable the deduction of 25% from the income of a worker who is suffering long term incapacity as the result of workplace injury.

It is not the worker’s fault (they say it’s a no fault system) yet the worker is quite severely punished for being injured at work.

It was particularly damaging to me as a part-time worker on a low income, yet I would think that this would feel quite punitive to even full time, well paid workers. I believe this reduction of the worker’s income is both unreasonable and counter-productive to Worksafe’s goals in relation to rehabilitating injured workers and returning them to work. Over the six years that I have been engaged in the current Worksafe system, this has caused me to lose a minimum of $30,000 in wages and an additional $2,000+ in superannuation payments.  That’s a rather substantial loss to a [50 +] year old who has less than $11,000 in superannuation and no job.

Over the years that I remained on their books as an employee, my employers continued to bully me through lengthy unexplained interruptions to my payments, refusals to conciliate my issues and intermittent threats of termination. Surely, in situations where bullying has contributed to a workplace injury, responsibility for the delivery of the injured worker’s weekly payments should not be left in the hands of the offending employer.  My cases and all that has happened to me in this system are illustrative of how badly the system works in view of its stated goals in relation to injured workers. It also provides a lens which takes in the operations of the system in its different guises as Workcare in [year] and Worksafe in [decade later] Names aside, neither of these systems has left me feeling safe or cared for!

How all this bullying has affected me

Being chronically bullied within the Worksafe system has had the effect of continually re-triggering the psychiatric injuries that were initially caused by workplace stress and bullying. As a result I have failed to heal and achieve work capacity for over six years.    In January [year], my compensable condition was diagnosed by the first Medical Panel I attended as

“a mild Adjust Disorder with Anxious and Depressed Mood which has arisen in response to the stressors of the workplace”.

My condition deteriorated significantly over the next ten months. The second Medical Panel found in [year later] that:-

“the worker had been suffering from a major depressive disorder prior to the circumstances of her return to work in late-January 2003 and the circumstances of her return to work and employment following her return to work exacerbated her major depressive disorder.” 

In July [3 years later] , the Medical Panel determined that my injuries were now permanent and diagnosed my condition as:-

“an exacerbation of a chronic major depressive disorder with traumatisation features” .

So now I have lost both my health and my capacity to work – the two most important human attributes for ensuring survival in the 21st century.  From those losses flows so much other damage and loss, I can’t begin to go there.

What happens to the broken worker?

It is now [year]  and and I am still being bullied by the Worksafe system. Last year, whilst in the grip of yet another bout of suicidality, I accepted a “compensation” payment of $[less than K100 gross]. I accepted this figure in spite of my awareness that the true financial costs to me of the injury are closer to one million dollars.

Legal fees paid by me in relation to the case were $15,000. The remaining money is fast disappearing as I have to use it to support myself and my son in rented accommodation. I have no other income and my acceptance of the compensation package has caused me to be locked out of the welfare system for a period of 16 months. By the time I am entitled to apply again, I will still have no work capacity, and my remaining compensation package will have shrivelled to less than $30,000.

At the time when I sold my home, I believed that I was taking a short-term measure to reduce some of the psychological pressures on me. I believed my healing would only take, at most, a year of therapy and that I would then return to the workforce. According to my life plan, I would then undertake full time work since my youngest child would have completed primary school. I would then be able to use the remaining bulk of my equity to purchase another home for myself and my son. This was not to be. It seems evident that I will never again be able to work full-time, and even part time work capacity is still uncertain.

Part of the agreement in relation to the compensation package that I accepted was that I would have continuing entitlement to medical and like services including return to work assistance. I have been attempting to obtain those services from my Worksafe claims manager since October [year]. I have made phone calls, written letters, got a verbal promise that the service would be organised for me, only to have it denied in writing after months of seeking an outcome.

Attempts to get anything from the service always becomes a fight which then exacerbates my condition, to the point where post-traummatic symptoms make it impossible for me to pursue my rehabilitation effectively, or indeed manage my daily affairs and family life.

My chosen course starts in July, so it’s too late now. Another year of my life is being wasted.

It seems that Worksafe has failed in its duty of care to help me recover from workplace injury and return to work. I am now [well in my 50’s] years old, and facing a future of quite dire poverty, all because I am being denied my rights to health and work.

Review my Worksafe claims

In reviewing my case, I request that you pay particular attention to each of the decisions made in determining my claims under the Worksafe system. I request that you do this with a view to establishing whether or not the specific behaviours and decisions could be termed reasonable.  Obviously the original decisions to accept or reject my claims were critical to my health outcomes.  However, I have also written many requests for medical and like services over the years and been both denied and ignored as a matter of course. Every little scrap of goodness and rehabilitation I’ve got, I’ve had to fight hard for, and there have been many, many times when I have been completely unable to continue fighting, and have suffered reduced access to rehabilitation services as a consequence.

I believe that the insurance agent’s management of my case constitutes a pattern of bullying that has continually retraumatised me and kept me from recovering.

Workers compensation laws contain many instances of discrimination against the worker that I have encountered in my own journey.  I don’t have time to document these instances now as I am preparing to travel interstate  for ten days. I will return to Melbourne on the date], and will thereafter be available for contact and continuance in relation to this complaint.

Please accept my apologies for the length of this correspondence and my gratitude for bearing with me to this point. I have been working on this complaint for hours every day for a week and making little progress as the symptoms have intensified. There is so much I’ve left out, but it’s always hard to know how much to tell.

Yours sincerely

This letter and story only further validates our ‘Cycle of Despair‘ model to help better highlight the impact that adversarial workers compensation systems has on the mental health of injured workers.

Thank you so so much for sharing your painful experience.

 

[Dictated and entered on behalf of WCV]

 

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