Know someone who has been injured at work and ended up on compo screaming about the abuse they have had to endure? Did they get a ‘fair go’?
It’s easy for us to dismiss these outcries from injured workers’ in the workers compensation scheme, many of whom are injured teachers, nurses, and emergency services workers until you consider the Cassandra Culture.
Cassandra, one of the most tragic characters in classical Greek Mythology, was given the gift of prophecy along with the curse that she would never be believed.
Silence and harm can create a Cassandra Culture – an environment in which speaking up is belittled and warnings go unheeded. Especially when speaking out entails drawing attention to unpleasant outcomes, as was the case for Cassandra in her prediction of war, it’s easy for others not to listen or believe.
We now know that low levels of psychological safety can create a culture of silence and harm. Workers Compensation has exhibited all these signs for far too long and until recently they were largely hidden, unearthed by a social movement of injured workers joining the confronting dots for the sector.
Betrayal Trauma
The sector has been rife with what is known as Betrayal Trauma.
Betrayal trauma encapsulates the trauma that occurs inside a trusted relationship or institution.
Betrayal Trauma Theory (BTT) was first introduced by Freyd (1994). BTT “provides a conceptual framework for understanding the unique impact of traumas perpetrated by trusted and depended-on people and institutions (betrayal traumas) on posttraumatic functioning” (Gómez, Smith, Gobin, Tang, & Freyd, 2016, p. 529).
A culture of silence is thus not only one that inhibits speaking up but one in which people fail to listen thoughtfully to those who speak up – especially when bringing unpleasant news.
Institutional betrayal can be rectified when organizations practice institutional courage.
In New South Wales two advocacy groups, the Gender Injury Discrimination In Insurance (GIDII) and, the Injured Workers Network who are associated with Unions NSW are both calling for radical reforms putting an end to the cruel and abusive practices of the scheme.
They are if you like the canaries in the coal mine and have been signalling for some time the abuse of injured workers goes way beyond what we know.
No one wants to think of the fact that people injured, unable to defend themselves harmed further than their injury in a system but that is exactly what has been happening.
The message: how the injured are treated when seriously hurt at work is everyone’s business and a cultural shift is required in our interactions with anyone who is or has been on workers’ compensation. The stigma needs to be addressed.
Whilst legislators and administrators of the scheme continue to debate are workers’ compensation schemes around the nation fit for purpose, increasingly it is injured workers coming forward talking to the abuse they are forced to withstand in the various schemes that is giving rise to a level of social discomfort.
There is much concentration on reform yes, but what are we going to do about the injured we have already harmed since the 2012 ‘reforms’ that undid the scheme?
Most injured workers’ describe workers compensation as being the worst experience of their lives even greater than the actual workplace injury itself.
Obviously sustainability must continue to be the focus in what is a $60 billion industry nationwide that is bleeding in each state.
Increases in mental health claims and, science is now also informing of us how these mental health injuries are occurring and is compounding the issue, forcing us to rethink our approach to psychological injuries more broadly.
That said, the workers compensation sector ‘helping’ an injured person hopefully to return to work is complex. Is it actually helpful to the outcomes required? There are regulators, scheme agents (insurers) for the nominal insurer (icare), medico legal investigations, doctors, return to work providers, lawyers all circling an injured person at their most vulnerable and making a quid out of their misery.
Imagine trying to navigate and communicate with such complexity when cognitive impairment is almost certain due to injury, pain and/or psychological harm.
Most of us simply do not know about this. We assume you get injured and get help which means the required medical help and some assistance with wages.
Understandably, employers who pay for this social insurance are up in arms about the compulsory premiums they are required to pay to the government who administers the scheme in NSW when we now know from the iCare scandal that started with a revealed Four Corners/SMH expose in 2020 labelled the sector ‘immoral and unethical’. We later learnt that Icare was lavishing itself with bonus’, overseas junkets, jobs for partners, an Imaginarium for staff to think of ideas the list goes on.
That should be enough in itself to turn the tides but more was to come with the SMH masthead uncovering that iCare had underpaid 52,000 injured workers tens of millions of dollars in one of the biggest underpayment scandals in the country.
Underneath this surface of self-indulgence and poor governance there were thousands of injured people, many abused because the system was lavishing on itself. Where are they now?
We know that of the 3000 injured workers who lost their weekly workers compensation benefits over Christmas 2017/2018, 375 injured workers were potentially at risk of self harm over the previous year. There were 13 cases of actual self harm. Of the 3448 who had lost their weekly payments since Christmas 2017, six had died. At that time the scheme was $2billion in surplus.
in 2021 that surplus turned into a $1.5 billion deficit as Icare, driven by a jump in the number and value of claims pushed total liabilities to $22 billion compared to total assets of $21 billion.
These results came at the end of a turbulent two years for the iCare which was created in 2015 by then NSW Treasurer, Dominic Perrottet to replace the state’s troubled WorkCover authority after it racked up debts of $4 billion. Workcover was broken into three agencies ICare (the nominal insurer), SIRA (the regulator) and Safework NSW.
The pattern is obvious – sustainability and policy decisions have not improved the situation rather gone backwards with a scheme now in total disrepair due to years of neglect and interference rather than care for the injured front and centre.
Need To Protect Women
Alarmingly, to fix this mess also requires considerable Law Reform which can be slow. Some has already been instigated but of concern at present Scheme Agents do not at law owe a duty of good faith to the injured.
The Case law of Garcia V CGU Workers Compensation Pty Ltd is cited often in any proceedings.
In July 2006, District Court Judge Goldring delivered a judgment that caused the insurance industry concern. In Garcia v CGU Workers Compensation Pty Ltd (unreported, NSW D Ct, 14 July 2006) it was held that the insurers had breached a tortious duty of good faith it owed to the respondent by stopping the respondent's weekly workers' compensation payments. It was held that this duty of good faith, a novel tort, existed independently of the legislative workers' compensation scheme. As expected, the decision was appealed and in CGU Workers Compensation Pty Ltd v Garcia [2007] NSWCA 193 (10 August 2007) the New South Wales Court of Appeal rejected the argument that the insurer owed a duty of good faith to the respondent as a worker entitled to compensation under the statutory scheme. An excellent review of that decision below.
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