The onus has always been on the officer to identify their problem and seek help. The issue with mental health is that much like noticing a freckle on your arm, you have no idea when it first appeared or how long it has been there. It does not present itself like a broken arm. It slowly eats away until one day you awake and find everything about you has changed.
My experiences with the AFP when I suffered a mental illness were that my managers didn't want to believe that someone like me could be ill. When I put my WorkCover claim in, they refuted it. In the process of refuting it, they emptied out my gun locker and excluded me from entry into my workplace. So, clearly someone thought that I was mentally unwell but they were opposing my claim… Anyway, that was resolved sometime down the track and, having to relive the incident over and over and over, having to convince people that something did occur to me and finally having the claim accepted was justification for what I'd done.
For first responders, accessing workers' compensation is subject to laws and processes in place across federal and state jurisdictions. These can vary; however, submitters report that none are straightforward to navigate for the injured first responder.
Many describe an adversarial system seemingly predicated on keeping the number of accepted claims to a minimum. Evidence suggests that the process may even aggravate mental injuries, impede recovery and inhibit reporting.
This is summed up by Adjunct Associate Professor Ray Bange:
Demonstrating work-related mental harm can be an onerous process for someone who is already in jeopardy. One of the constant refrains has been a concern at the compensation processes, with delays, multiple assessments, and invasions of privacy. Paramedics have said that the stigma involved in declaring distress and gaining recognition of harm, and the perceived difficulties in obtaining redress through external mechanisms such as workers compensation, tend to inhibit reporting and contribute to overall stress.
Workers' compensation insurers
The workers' compensation insurer for most Australian government agencies and the ACT Government is Comcare. It is also the work health and safety regulator for these agencies, along with a number of others. In practice, this complex system means that Comcare only has insurance coverage for the Australian Federal Police (AFP), Airservices Australia and the ACT Emergency Services Agency. The following occupations within those agencies are covered:
Emergency services workers
Fire and emergency workers
Intensive care ambulance paramedics
First responders who are not with the AFP or the ACT Emergency Services Agency, that is, the vast majority of first responders around the country, are covered by a host of providers, including but not limited to:
Allianz Australia Insurance (Allianz)
Jardine Lloyd Thompson (JLT)
In addition to these private sector providers, some state agencies are covered by their respective state-based public sector insurer, such as:
icare in New South Wales;
South Australian Fire and Emergency Services Commission in South Australia;
Riskcover in Western Australia; and
The committee notes that police officers in Western Australia are not deemed to be employees under the Workers' Compensation and Injury Management Act 1981 (WA), and as such are not covered by the workers' compensation act. Instead, the WA Police Force operates an in-house, self-funded workers' compensation scheme.
Duties of employers and workers
The Department of Jobs and Small Business (the department) submitted that the primary duty of care for work health and safety under the Work Health and Safety Act 2011 (WHS Act) rests with persons conducting a business or undertaking (PCBUs):
They must ensure the physical and mental health and safety of workers while they are at work, wherever they work and whatever work they do.
This places responsibility on PCBUs to eliminate risks to health and safety in as far as practicable or, where they cannot be eliminated, minimise them as far as is reasonably practicable. This is particularly difficult to achieve in hazardous work environments, such as those first responders operate in. Nonetheless, an obligation on the part of first responder organisations remains, and 'reasonably practicable' can be measured by looking at:
The likelihood of the hazard or risk occurring;
The degree of harm that may result from the hazard or risk;
What the person concerned knows, or ought reasonably to know, about:
the ways to eliminate or minimise the risk;
The availability and suitability of ways to eliminate or minimise the risk; and
Lastly, the cost associated with the available ways to eliminate the rest, including whether the cost is grossly disproportionate to the risk.
This requires first responder organisations to be 'actively involved in identifying, assessing and controlling work hazards' which pose a threat to workers' physical and psychological health.
For their part, under the WHS Act workers are required to take reasonable care for their own health and safety and comply with instructions which allow compliance with the WHS Act.
The committee notes that, as explained by the department, this 'places a limit' on employers' duty:
it places a reasonable limit on a PCBU’s duty to manage risks to a worker’s mental health, such as in situations where a worker has more control over or knowledge and understanding of the risks to their mental health.
For example, this may be the case where a worker fails to notify a PCBU of an existing mental health condition and their inability to cope with their work.
The committee notes the complexity of the above arrangements in the context of significant workplace stigma associated with mental ill health in first responders.
Wariness of the system
Many first responders with diagnosed post-traumatic stress disorder (PTSD) reported having considerable difficulty accessing workers' compensation and encountering an adversarial system when attempting to do so. The demands and impacts of this battle on a person already suffering from a serious mental health condition cannot be understated. A few representative examples from first responders and their representatives are listed below.
Mr Eric O'Rourke, a veteran police officer submitted:
In December, 1975 I took an oath to “well and truly serve” etc etc and did just that for near on 30 years. They were the best 28 years of my life! Admittedly I am responsible for how I ended up, to some extent. I am intelligent, insightful and would regularly do a personal stock take on where I was and who I was. I was at the sharp end of modern day serious organized crime investigations and the risks were high, but the rewards of success were equally as high. I succumbed to PTSD in 2004 and was ‘let go’—better described as pushed out—two years later. In the interim two years when I was on sick leave I was treated as a leper. Little, or no contact with my management team, dealing with their lies and manufactured evidence regarding the cause of my injury and finally the ‘wigfest’ battle for compensation and appropriate treatment. All of this when I had trouble with the most base of human relations.
Mr Steven Fraser, Vice President and Ambulance Councillor of the Health Services Union submitted:
The majority of our members who have been through the workers compensation process find the process more damaging than the actual injury at times. It's described to us that they become more damaged by the process of making a claim. Those stories make others tend to shy away from reporting and self-reporting.
Mr Jim Arneman, Project Officer with the National Council of Ambulance Unions submitted:
In the last couple of days, we've received news of another colleague of ours who has apparently taken his own life. That's really put a very strong focus for me on what's happening here today. This is really personal for us. It's our workplace friends and colleagues that we're here to talk about. It's particularly personal for me. In 2014, in May, my wife, who is a paramedic, had a knife pulled on her in the back of an ambulance. She was working with a graduate student at the time, caring for her as well as for herself. She drew on all of her 15 years of experience to convince that person, who had a psychiatric injury, to exit the ambulance. She secured the ambulance and she called for help by pressing a duress button. Help didn't come. There was a breakdown in procedures. There were all sorts of problems with the response of police, and that wasn't due to the police's fault in any way. I'm raising it here because the struggle she went through is really emblematic of the struggle that a lot of our members have gone through when they end up with psychological injuries, from the breakdown in work practice and communications, to the initial difficulties of lodging her claim, to the adversarial process that she struck when she ended up in the workers compensation system, to the difficulties she had in finding relevant treatment professionals who understood first responders' issues, to the problems that she has had with rehab and making people understand her skills as a paramedic, to the difficulties she is now facing where she has had to realise that she can't come back to a career that she has loved because her treatment professionals have told her it's not in her best interests as there are too many triggers there for her to continue.
The Australian Paramedics Association Queensland told the committee that engaging with the existing workers' compensation system is simply too traumatic for many people struggling with PTSD:
What I do see is that paramedics are reluctant to put in a WorkCover claim. If we're relying on the number of WorkCover claims as the figure for the amount of mental health illnesses there are in QAS, it's not going to be correct. It's not going to be correct because paramedics really struggle to put in these claims—because for them, throwing their hands in the air and going, 'I need out'—it's like, the paperwork itself can be hard to get through.
Dr Jann Karp, a former police officer, echoed this through her own experience:
PTSD is an ongoing injury about one third (common knowledge) of sufferers have active symptoms. The symptoms are ongoing/chronic. So if I tell the insurance company that I am being treated but am still unwell then the insurer concludes the treatment is not working. If the doctor provides a report then that report is deficient because the doctor has not fixed the problem as in the physiotherapist report that was provided for me. So this cycle of responses is across the injury board. So then the insurer will cut off my payments for a reason. How do I respond? I am at risk and I have PTSD. It is very difficult to get medical costs for treatment. Do I fight the insurer in court? It is very expensive or do I commit suicide?
Although the committee did not receive research on this point, Professor Samuel Harvey, Chief Psychiatrist with the Black Dog Institute, agreed that the existing workers' compensation process can impede individuals' recovery from mental health conditions:
It's not something we've published any research about, but, as a clinician, I would absolutely agree that there is something about the process of workers compensation claims that can get in the way of individuals recovering. We need to do whatever we can to reduce that, while making sure that we have appropriate scrutiny around diagnosis and treatment. I agree that the process itself becomes quite damaging in many of the cases I see.
Some of the impediments to first responders accessing workers' compensation are set out below.
Accessing workers' compensation
A typical experience for a first responder putting in a mental health claim was broadly set out for the committee by Mr Danny Hill, General Secretary of the ambulance branch of United Voice, Victoria. It is summarised below:
A worker performs his or her job well for years. This could be 10, 20, 30 years.
Gradually, 'the wheels start falling off'; they are late, their paperwork is incomplete, or they may start to clash with a colleague.
This triggers a performance management process. Workers in this situation will often try to transfer to a less busy location, where they are more isolated.
Members will approach their union already involved in a disciplinary process at work.
This, the committee heard, means that the symptoms of mental health conditions often only begin to be visible when they impact on performance:
We sit down and talk with them, and we realise that they're actually really suffering. The reason they're keeping away from their managers and pushing people away is, 'I just can't cope with it anymore.' They're not interested. They don't have the time or the mental fortitude to be put under the spotlight or put under the scrutiny that a paramedic is normally put under, which is a huge amount of pressure.
From the employer's perspective, they are dealing with a staff member on the basis of poor performance, and the response is deemed to be 'reasonable management action'. Reasonable management action is a recognised defence to claims of alleged psychological injury which makes it difficult for affected workers in this position to successfully make a workers' compensation claim.
Mr Hill cited a recent example:
Someone who recently fitted that exact description told me about a history of cases that he'd been to. This guy's grandmother had hung herself, his father had hung himself and then he had a son who he feared would hang himself because he had a drug addiction. He was an average paramedic. In my time, in about 10 years in emergency on the road, I went to maybe three or four hangings. This guy had been to about 15. So it was in his mind and he started to play the things out in his mind. He started to visualise. I said, 'Mate, you're clearly not well. Have you had help for it?' He said, 'No. The issue isn't me. I'm coping with that fine. It's all the performance stuff; it's management scrutinising me.' Sure enough, that person has now gone to get the help he needs and he's in the program to get the treatment for his PTSD, but it takes a real shift in thinking for both the member and also the organisation to say, 'This isn't someone who's just acting up because he doesn't give a damn about his job anymore. He's actually suffering. He's got a very serious underlying problem that he doesn't even know about.'
Competing priorities for employers
The Health and Community Services Union, Tasmania, made the point that first responder organisations have two interests which are diametrically opposed: minimising workers' compensation claims and supporting their staff. The union described this situation as problematic and called for changes which would require employers to put the interests of their staff first:
Currently, employers have an interest in both minimising claims via the workers compensation system and supporting staff. These two things are diametrically opposed. You can't be minimising your legal and financial position whilst you're supporting a staff member, and that's really problematic in the overall workers compensation system, so we seek that the Senate recommends ways in which employers must be advocates for their employees in the first place. If the workers comp system or the workers comp liability were handled by an independent body away from the workplace, something of that nature might be beneficial. Certainly a concept of liability minimisation isn't in the interests of the worker.
Mr Craig Atkins of the Code 9 Foundation informed the committee that the foundation's members are wary of insurance companies, which they believe employ 'deny and delay' tactics to protract the application process and thereby frustrate the process:
My insurance company, for example, has a customer service charter where they are to reply to any written correspondence within three days. Last time I sent them something was on 25 July [spoken on 5 September]. I sent them a follow-up last night. I'm still waiting to hear back from them. That was for a letter from my doctor saying that he needs these two pieces of medical equipment. It's just their standard tactic.
This 'deny and delay' tactic is, the committee heard, unwritten but assumed.
Witnesses representing the ambulance branch of United Voice, Victoria, concurred.
The committee notes that some agencies gave evidence on work they were doing to reduce waiting times. Ms Jennifer Taylor, Chief Executive Officer of Comcare, described how her organisation was working with the AFP to streamline claims processes:
Over the last few years we've been working, particularly with the AFP, on processes to improve our claims processing services and our claims management. When there is an injury, what we require is a claim. For a claim, we have a claim form, a statement from the employee, a statement from the employer and a diagnosis from an appropriately qualified medical practitioner. What we've tried to put in place with the AFP is a streamlined process—or a fast track, if you like. If we have all of those things and the statement from the employer concurs with the employee—'Yes, they were at work. Yes, this happened,' or 'This is their service, et cetera. Yes, they were exposed to whatever'; and I'm talking particularly about psychological claims here—then that all comes to us. We will process it and go through it, hopefully, in a fast-track way. Have we been entirely successful in that? No. Can we improve and keep improving? Yes. And we continue to talk with the AFP, particularly.
The committee noted that Comcare had more than halved its processing times for reaching a determination in accepting psychological injury claims. The average times went from 125 days in 2007-08 to 54 days in 2016-17 despite an increase in the number of claims made.
At the same time, the committee noted quite a high claim withdrawal rate in some years, also noting that Comcare does not follow up with psychologically injured workers who withdraw their claims.
However, the committee is cognisant of the view that some insurers use deliberate stalling and delays specifically in order to turn the pressure up on claimants, increasing the chances that some will withdraw their claims out of sheer frustration. However, as one witness pointed out this process has a tendency to force the first responder to relive various traumatic events, thereby exacerbating their situation:
With that whole independent medical examination system, I still support one fellow. I think he holds the world record for going to 12 independent medical examinations to tell his story. When he goes to his own psychologist and tells his story, there is a treatment component in that. And this was a very complex man. When he's going to these guys, he's reliving that story because they've got no paperwork in front of them that says what the story is, so he starts it all again. He brings up all the deaths; he brings up all the trauma… He brings up a lot of that sort of stuff and relives it. He relives it with this guy over here who's trying to get him to move on and with this bloke over there who isn't interested. This one here signs a cheque, and this one here doesn't. Eventually he got through it, but it took two years and they basically settled on the steps of the court before it went to a hearing. Those are the sorts of tactics they do. It's all part of a system that if you—and I've seen it happen time and time again. If you delay someone, if you deny someone, eventually there's a chance they'll give up. And, if they give up, you save the insurance companies a lot of money.
The effects on the individuals who are already mentally unwell, as well as their families, can be significant and manifest in a further cycle of violence and destructive behaviour:
What it does to the individual is it destroys them and it destroys their families. It gets them to the stage where—and I know this for a fact—there are incidents of domestic violence that you cannot in any way, shape or form say you understand because you don't. But, because of the way that they're that unwell, there's domestic violence; there's alcohol abuse; there's drug abuse; there's prescription abuse; there's non-prescription abuse. There are all these risky behaviours. There are suicide attempts, and it's all because of an absolute shit system. That system can be changed, but, in this state, right now, Daniel Andrews and Lisa Neville, the police minister, will not entertain that change. If we don't get that change, in five years' time we'll be sitting here saying exactly the same thing. And that's why I said before that, if you guys can do it federally, it's a game changer.
Independent medical examiners
Insurers hire independent medical examiners (IMEs) to assess whether employees are fit for work. It is an integral part of most mental health claims that a person must be assessed by an IME, usually a psychiatrist, in order to prove the validity of their claim. In theory, these are professionals providing an independent assessment of the claimant's mental health.
The committee heard evidence from around the country indicating that workers' compensation claimants do not trust IMEs. One witness, Mr Michael Cummins, a police officer who left Victoria Police when he was unwell—taking a job as a private contractor security trainer in Iraq instead, as this seemed a safer option—summed up this view, describing IMEs as 'opinions for hire':
The independent medical examiners are not interested in getting you better. They're interested in denying liability. If it's in Sydney it might be EML. If it's in Melbourne it might be Gallagher Bassett, and there are the other insurance companies. They're paid by the insurance company. Some of them have been paid since the OH&S Act came in in the mid-eighties for Victoria. Some of those have been on the gravy train since then. You're not going to give a report that is supporting me and what I'm saying to someone who gives you $1,100 per assessment.
Others agreed, explaining that first responders quickly come to the view that IMEs are not there to help them:
You think that they're there to help you. After you walk out of there, then you twig. On the second one, you walk in and you're already on the back foot, because you're like: 'They're not here to help me. I'm being sent there because this person wants to—not get me better; they just want me to go back to work so that WorkCover can cut my payments off.'
Ms Jeannie Van Den Boogaard, a medically retired former employee of the Victorian Emergency Services Telecommunications Authority (ESTA), described how her former employers seemingly 'shopped around' until an IME provided the report necessary to terminate her compensation payments:
The thing that I found amazing was that the first three or so that I was sent to all came back the same—that I had PTSD, that I had severe depression and anxiety and that I was not fit to work for X amount of time. But, within that time, I'd be sent to someone else who would then say exactly the same thing, and I was not fit to work for, say, six months. But, within four months, I was sent to someone else. When I was sent to this one woman—who I didn't like at all from the start; she was not a nice person; for someone with PTSD, treat me a little bit more gently than what you are—she originally agreed with everyone else, and her report said that I had PTSD, I had severe depression and I was not fit to work for the next six months. CGU, who was WorkCover, then asked her, within I think it was not even two months, to write a supplementary report. She didn't even see me, so without seeing me she wrote the supplementary report. I can't remember the exact words, but the gist of it was that I'd made a miraculous recovery and was okay to return to work. What did they do? They cut my payments. Bingo. They found her. So then I had to spend four months fighting them and going to medical panels. In the meantime, I had no income. So what did I have to do? I had to go to Centrelink and fill out more forms, which created more stress, and go through all of their stuff.
The committee discussed the use of IMEs with witnesses representing the Australian Psychological Society (APS). Dr Louise Roufeil, Executive Manager of Professional Practice with the APS, confirmed that her organisation has significant concerns with the practice of sending claimants into a confrontational situation with IMEs.
The committee also discussed the use of IMEs with a number of insurers and agencies.
Pre-empting the question, CGU Insurance (CGU) outlined work underway to re‑evaluate how mental health injury claims are handled. Recognising the detrimental effects of IME involvement on persons already suffering from mental health conditions, part of CGU's five-phased approach to re‑engineering its processes was the introduction of strategies to avoid the use of IMEs:
Phase 4 was the introduction of a pilot program with a clinical psychologist, aimed at disrupting the cycle of certification for mental health claims, focusing on coaching and guidance for the treating health practitioner to better support the needs of injured workers with mental health challenges. The intent was to also avoid the use of independent medical examinations by gathering information directly from the worker, their employer and their treating health practitioner, because the process of attending an IME, for a person with mental health issues, often exacerbated the mental health condition.
This specialist approach supported the treating health practitioner, in most cases the family GP, to help them understand the condition, how best to treat and how best to support a return to work where appropriate. Where a change in certification was identified, in most cases an occupational rehabilitation consultant was engaged to develop a return-to-work plan in conjunction with the injured worker and their GP.
CGU reported that this shift is having positive effects both in terms of assisting injured persons to return to work, and reducing premiums:
What we saw through our pilot program that we ran last year was that we were able to get a change in certification for 40 per cent of the claims where there was a full return to work. And that return to work came with conditions, which is why, in over 90 per cent of cases, we engaged an occupational rehabilitation consultant to assist with return to work. We also saw a change in certification on 82 per cent of claims. So if we are getting people back to work, even though some of it might be in a part‑time capacity, it will actually transfer from the cost of mental health claims and reduce premiums. Over the last three years the claims of the Country Fire Authority here in Victoria, who we represent, have reduced. They had eight claims in 2016, five claims in 2017 and only three claims in 2018...
As mentioned earlier, Comcare has worked with the AFP to fast-track PTSD claims, in part by removing the need for an independent medical examination as long as there is a supporting diagnosis from a treating psychiatrist:
For operational AFP officers, that involves the acceptance of the claim without the need for an independent medical examination where there is a diagnosis supported by the treating psychiatrist... I think that where we do have that right information up-front we're able to fast-track the acceptance of the claim and without the need for that independent medical examination.
In situations where Comcare does use IMEs, the agency stated that such reports only form part of the evidence relied upon to assess a claim:
The reports that we would receive from an independent medical examiner are balanced against the other evidence that exists on the claim: statements from the employer, statements from the employee, reports from treating practitioners. The claims manager will make a determination based on the balance of evidence; however, one of the processes that Comcare are now establishing is reviewing our entire framework for the use of independent medical examiners and looking to make sure that the standards that we have in place are appropriate.
IMEs will be selected on the basis of their expertise, for example in PTSD, Comcare added. The committee notes that finding IMEs with expertise in PTSD is not straightforward.
By contrast, Allianz and JLT, both giving evidence on the same day as CGU and Comcare, confirmed that they continue to rely on IMEs to make assessments. Both were asked how they ensure that IMEs are not incentivised to delay or reject claims.
Mr Noel Catchpole, speaking on behalf of Allianz, explained that he was not aware of this as a problem and had a hope that IMEs would not be biased:
For IMEs in general, I would hope that all IMEs that we use are not biased and provide valued opinions in respect of the same things for treatment, return to work and liability. I'm not sure exactly; I haven't come across too many situations where we've actually had complaints about bias in respect of IME assessments. I've been around a long time; historically there are obviously specialists that, from a plaintiff lawyer's perspective, may provide a report that slants a certain way, and similarly with insurers. As far as Allianz goes in Western Australia—and, I'm assuming, across the country—biased or one-sided opinions are not something that we condone, and they certainly won't be condoned by WorkCover WA, if you have a dispute.
The stepdown provisions involved in a long-term illness or condition were identified as a critical factor for some first responders.
The Police Association of Tasmania described how these provisions cost first responders financially and add to the stress of an already difficult situation:
The conditions that our members are currently subjected to reduce their salary from 100 per cent after 26 weeks on workers compensation. Their salary drops to 90 per cent, from 27 to 78 weeks, and then to 80 per cent thereafter until such time as they return to full-time work. That creates another level of stress for a member who happens to be off on an accepted workers compensation claim.
Representatives from the association noted the current Tasmanian Government's commitment to exempting Tasmanian Police from these step‑down provisions.
Other witnesses found this commitment from the current Tasmanian Government to be lacking as it does not cover other Tasmanian first responders:
[W]e just find it quite bizarre that the government might announce a policy for reducing or essentially getting rid of step-down provisions for one element of its workforce given what we know, particularly about the front line—that is, nurses in emergency departments, ambulance workers, fireys et cetera—as to why there would be some favouritism applied in those circumstances, particularly given that the statistics in relation to PTSD in ambulance are that it is higher in our space. So there doesn't seem to be any science around that decision at all. So it's quite concerning and upsetting for us that that's the approach that the state government's taken.
Trigger events and management action
The committee noted that the complexity of PTSD means that a person may not always be aware of a point in time when their exposure to trauma began affecting them, but may instead respond to a trigger. For some employees, this can unfortunately result in a rejected compensation claim:
I know of many paramedics who have lodged claims and their claims have not been approved. The reason, usually, is based on 'reasonable management action'. So for the paramedic, they may have attended a case many years ago and it has affected them in a certain way, but more recently the way they've been treated by their employer has compounded that. So when they put in a WorkCover claim, they will put in the management action that they feel has affected them, and then the employer will provide a response and say, 'well, that's all reasonable'—and the claim doesn't get approved.
A rejected claim can further demoralise an employee suffering a mental injury, leading them to take sick leave because they cannot cope with being at work but have few other options. This can lead to management actions which are ultimately detrimental to recovery and arguably contribute to stigma around seeking help:
When a claim doesn't get approved, they will then access all of their sick leave, and then they will resign—because once you're on unpaid leave for a period of time, the Queensland Ambulance Service will say:' Right, you are directed to go and see an independent medical examiner.' I'm not sure if it's in the submissions that you saw, but there is a circumstance where a paramedic was on leave—on QSuper, which is the salary continuance—and QAS was disciplining him for his inability to attend an independent medical examination. That type of management conduct is what creates the culture.
However, looking for a single trigger effect can at times be reflective of a poor level of understanding of how PTSD can develop and manifest:
There's also very little understanding, and this has been compounded by the Diagnostic and statistical manual of mental disorders, fifth edition, diagnosis of post-traumatic stress disorder, which has changed. It is changed all the time. The compounding is that work cover insurers seem to be invested in the trigger event. They want the single event. I have police officers who are off on sick leave and self-harming because they have been asked to write down everything that has happened to them in their service, which in some cases is 35 years. On occasion, these people have come quite close to committing suicide. The lack of understanding of that just seems most peculiar.
Furthermore, Mr James Gilbert, Occupational Health and Safety Officer with the Queensland Nurses and Midwives Union, explained that the workers' compensation claims process places disproportionate emphasis on injuries arising out of management action. This is problematic for mental health injuries and can arguably contribute the claims being rejected:
In the claims process there appears to be an obsession with the section of the Workers' Compensation and Rehabilitation Act in Queensland that deals with injuries arising out of management action. So it might be that the person was exposed to a traumatic event or an assault or something, and they'll invariably get asked, 'How did your employer respond?' or 'How did your managers respond?' Quite often people are aggrieved that they've been injured and they will talk about how horrible or how lacking the support they got was. So immediately their claim is subsumed by the management action section of the act, which is a discriminatory section deliberately put in there to knock out workers compensation claims.
Systemic discrimination by insurers
A submission from Adjunct Associate Professor Ray Bange cites research which points to systemic discrimination on the basis of mental health on the part of insurers:
The evidence shows clients have been refused cover, had their claims declined or faced unreasonably broad exclusions and significant additional premiums as a result of disclosing a mental illness or a history of mental illness, including short episodes of anxiety or depression.
The submission reiterated the distress the claim process causes people with mental injuries and stated that psychological health must be included in definitions of health. Addressing this, the submission concluded, requires:
…a sea-change in attitudes, not only within the service environment and among colleagues but also a much greater awareness and understanding of mental health by those dealing with treatment, insurance and compensation issues.
Adjunct Associate Professor Bange also called for the use of private insurers to be examined:
The use of private insurers for compensation issues needs consideration of their ethical and probity standards under a business model which appears aligned to profit and cost (claim) minimisation rather than 'neutral' underwriting outcomes. This concern extends to the conflicts of interest, moral risks and fraud and corruption opportunities created by a system where financial rewards and penalties drive performance, and unreasonable decisions may result in people being injured again by the system.
Presumptive PTSD legislation
A number of witnesses and submitters called for presumptive legislation to be introduced, allowing first responders with PTSD to access compensation without first having to prove that their condition is work-related.
The basis of presumptive PTSD legislation would reverse the onus of proof, instead requiring first responder organisations to prove that an employee's PTSD is not caused by their job. Effectively, the burden of proving or disproving a fact would no longer be borne by a person simultaneously struggling to cope with a serious mental health condition. It would, the committee heard, mean that the affected first responder is 'on an even playing field'.
Mr Stephen Heydt, representing Healthy Minds Clinical Psychologists, told the committee that presumptive PTSD legislation would streamline the chaotic existing system:
The other aspect, though, getting back to work cover, is that we have such different work cover systems across the eastern seaboard—of which I am familiar—that it is almost impossible to encapsulate it in one. In Queensland, Queensland Police pays $30 million to another arm of the Queensland government called the WorkCover insurer, who then gives the dividends back to the government, very speculatively, which presumably then funds police again to pay WorkCover—all of which sounds really strange to me. I do not think anyone has ever stood back and really looked at what is necessary here and what is going on. There have been so many reports and so many inquiries. We almost need a no-fault work cover, as we have no-fault car insurance, where, if something happens to you in the job, it is assumed to be caused by the job you are doing.
Another witness, Mr Scott Fyfe, a paramedic with 35 years' experience appearing in a private capacity, suggested that introducing presumptive legislation for PTSD in first responders would encourage those who need workers' compensation to seek it:
Governments need to accept, in my view, that cumulative exposure to traumatic events is a known reason for PTSD for its workers, and this should be presumptive in workers compensation legislation.
Presumptive legislation would mean that the challenge of going through a workers compensation [claim]—the trials and tribulations that many paramedics I know have had to go through—is almost too difficult for them to consider, so they would prefer not to. I certainly know of a couple of colleagues who have not done that because they found it too hard, to adversarial, to actually go through it all. That is probably the single biggest thing that would change about how we address mental health, certainly within ambulances across Australia.
The moral case for presumptive legislation is strong. The public has an expectation that first responders will go headfirst towards danger when this is needed:
The community owes these men and women a huge debt. We expect them to be ready and available at all times day and night and in all circumstances. The least we, as community members, can do in return is listen to what they are telling us and support initiatives that will allow our them to stay healthy and capable of continuing to do the demanding job we ask of them.
Presumptive legislation in the first response context is not without precedent in Australia, with legislation enacted by Parliament in 2011 relating to occupational cancers in firefighters, following a Senate committee inquiry into the matter. The inquiry concluded:
The committee has carefully examined the large amount of evidence with which it has been presented. Study after study has pointed to a higher risk of cancer for firefighters than the general population. Science has confirmed what firefighters suspected for decades: that a disproportionate number of them in the prime of their lives are brought down with illnesses usually reserved for the old and the infirm.
The committee recognises that cancer is an illness that touches many fit, healthy people in the non-firefighter population as well. In many cases it is unpredictable and incomprehensible, due to genetics or factors we do not yet understand. But when the science tells us that a particular group of people who are routinely exposed through their service to the community to known carcinogens are at higher risk of developing certain types of cancer, then the response becomes clear.
The committee recognises that when a person spends their professional career inhaling and absorbing known—and probably some as yet unknown—carcinogens in the course of public service, it is the moral duty of the community to enable them to seek compensation should they fall ill as a consequence.
In September 2018, the Tasmanian Government announced the findings of a statutory review into workers' compensation provisions relating to PTSD. The review did not find a need for presumptive legislation for first responders who seek to access workers' compensation. This was justified on the basis of a reported low dispute rate for PTSD-related claims.
The authors did, however, acknowledge a significant shortcoming of the review:
A limitation of the review, was the current state of the data held in respect of the Tasmanian workers compensation system, particularly factors influencing its accuracy, which in turn does not permit any meaningful assessment or analysis of particular aspects of the scheme or for conclusions to be drawn. Of particular relevance to this review, the reviewers were unable to determine with certainty, the total number of claims for compensation that involved a diagnosis of PTSD. Claims for compensation when made are coded in a manner that describes the description of injury (disease) and the circumstances in which the injury (disease) was suffered. This initial coding of information remains as such for the duration of the claim. The data therefore does not permit a determination of those cases where an initial diagnosis of a mental illness is later changed to one of PTSD, or initially the claim is made for a physical injury but at some later time PTSD emerges either as a result of that injury or as a result of the incident in which the injury was suffered.
Despite the report's recommendation against amending the Workers Rehabilitation and Compensation Act 1988 (Tas), on the basis of compelling evidence, the state government announced the introduction of a presumptive legislative provision which reverses the onus for public sector workers to prove that their diagnosed PTSD is a result of their employment. In announcing the new policy, the Minister for Building and Construction, the Hon Guy Barnett MP outlined the government's reasoning for committing to presumptive legislation:
…the introduction of a legislative presumption is the right thing to do to support our first responders…suffering from PTSD.
It will remove a potential source of stress for those who are suffering with PTSD, and highlight the importance of helping people return to meaningful work.
Claiming workers compensation can be a daunting, challenging or stressful process, particularly if the claim is mental health related.
PTSD and other psychological conditions are different to other diseases and injuries, in that they can be difficult to diagnose and can be secondary to an initial injury…
PTSD is a particularly complex condition to diagnose, especially where it is a result of cumulative exposure to incidents, which can be the case for emergency service personnel and first responders.
As such, it may be difficult for workers to navigate the workers compensation process to have PTSD claims approved.
The presumption will help in removing any barriers people may be experiencing in making an actual claim.
In addition, the legislative presumption will go a long way in helping to reduce the stigma that is often associated with mental health, which may impact on the decisions of workers to disclose their symptoms leading to under-diagnosis of conditions such as PTSD.
It has been recognised that there has been a significant shift in attitudes over the past few decades in adopting preventative measures in identifying and addressing mental health issues, including PTSD.
However, more can be done to bring about the cultural change needed where workers will be confident enough in putting their hands up to say they are struggling, without fear of any reprisal.
This legislation is a step in the right direction.
The committee notes that, at present, no other Australian jurisdiction has taken legislative action to introduce a presumptive provision for PTSD suffered by first responders.
In Western Australia, the WA Department of Fire and Emergency Services (DFES) explained that its insurer, RiskCover, has for over six years accepted liability for all PTSD claims made by first responders, and funded preventive therapies, on a without-prejudice basis before determining liability:
Part of that is based on the fact that the insurer and DFES have a very clear idea about who is responsible for doing what. We don't get involved in any determination of liability. We leave that as a matter for the insurer… Through the relationship that we have with…the [DFES] workers' compensation and injury management branch and their counterparts at RiskCover, it has been a process whereby we're educating the RiskCover personnel about the occupational prevalence of exposure to trauma and what that might mean. We are also working with them around the claims process. On most occasions now, there is not a requirement for a factual investigation. We had found previously that the factual investigations were actually quite distressing for the claimant, as they were having to often relive or justify their injury.
The Canadian experience
Canada leads the world on many health and safety issues for firefighters.
In Canada, the province of Alberta was the first to amend its Workers' Compensation Act in 2012 giving first responders—including firefighters, police officers, sheriffs and paramedics—an entitlement to compensation for PTSD without being required to prove that their condition is work related. The legislation was updated in 2018 to include correctional officers and emergency dispatchers.
A submission from Fire Chief Ken Block, from the City of Edmonton, Alberta, highlighted the main features and benefits of Alberta's presumptive legislation:
For a worker employed in any of the occupations listed and diagnosed with PTSD by a physician or a psychologist, WCB [Workers Compensation Board] will presume the condition was caused by the employment, unless the contrary is proven.
A diagnosis of PTSD by a medical or psychological professional must be made using current criteria established in the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association.
The presumption allows injured workers to receive workers’ compensation coverage and treatment for PTSD as soon as possible.
Since then five out of ten Canadian provinces have introduced presumptive legislation relating to PTSD. Mr Alex Forrest, a Canadian firefighter, President of the United Firefighters of Winnipeg and the International Association of Firefighters Canadian trustee, submitted that the extent of presumptive legislation varies across provinces:
The specific scope of the law does fluctuate from province to province—legislation from Alberta only covers police, fire, and ambulance whereas the Manitoba legislation is more widely scoped.
Mr Forrest has had input into drafting presumptive PTSD legislation, and has spoken on the issue around the world. He explained that the introduction of presumptive legislation addresses the inherent problems with having to prove the cause of a workplace injury like PTSD:
[T]his issue is as complicated as the human mind. When I sit down, I look at the legislation and ask, 'How are we going to fix this legislation?' It has to provide a safe place for emergency workers to go, because you have to understand the nature of what PTSD is. PTSD basically removes you from society and you lose trust. If you don't have an environment that's culturally aware of what you're going through, people will turn away from treatment and they'll turn away from the possible compensation. It usually ends in very tragic circumstances. Members need support and treatment; they do not need a questioning and justifying environment where they have to justify why they're even there to put in the claim for PTSD.
The Canadian example is instructive. In many provinces, in order to qualify as traumatic mental stress an illness had to result from an acute reaction to a particular, unexpected traumatic event. Such a clear and identifiable event was not necessarily compatible with the development of PTSD by reason of cumulative exposure to trauma. To address this, PTSD was dealt with uniquely, with Canadian Provinces including specific provisions for the condition. This means that an acute reaction to a particular, identifiable event no longer needs to be established.
Claiming workers' compensation can be a daunting process, particularly if the injury concerned relates to mental health. At present, in most states first responders suffering PTSD are required to navigate this complex and adversarial system at a time when their mental health may be impeding their ability to navigate even basic daily interactions. The committee received substantial evidence which demonstrates that the process to make a claim for compensation—where first responders are required to relive their traumatic experiences, often on multiple occasions—has a tendency to exacerbate their psychological injury. The committee is in principle persuaded by evidence supporting the introduction of presumptive legislation covering PTSD and is of the view that the benefits of a coordinated, national approach should be fully considered. It is vital that any new, national initiative builds on progress already made in this direction by some states, and that this progress is not stalled while the recommendations below are implemented.
The committee also notes that reversing the burden of proof from first responders to employers would not introduce new entitlements. Instead it would allow affected workers easier and more timely access to necessary assistance and compensation, whilst leaving the opportunity for evidence‑based rebuttal open to employers to dispute claims.
Furthermore, the committee agrees with arguments put forward against a system of workers' compensation driven by profit and the objective of minimising payouts. Instead the committee calls for a concerted effort to ensure that first responders have access to a fair compensation system based on early intervention and optimising their prognosis and prospects of a successful return to work.
The committee is firmly of the view that compensation law pertaining to psychological injury in first responders should be harmonised across all Australian jurisdictions.
The committee recommends that the Commonwealth Government establish a national stakeholder working group, reporting to the COAG Council of Attorneys General, to assess the benefits of a coordinated, national approach to presumptive legislation covering PTSD and other psychological injuries in first responder and emergency service agencies. This initiative must take into consideration and work alongside legislation already introduced or being developed in state jurisdictions, thereby harmonising the relevant compensation laws across all Australian jurisdictions.
The committee recommends that the Commonwealth Government, in collaboration with the states and territories, initiate a review into the use of independent medical examiners (IME) in workers' compensation.
The committee recommends that the Commonwealth Government establish a national register of health professionals who specialise in first responder mental health.