Paul Smith | 20 September, 2016 |
Insurance agents “shopped” for doctors whose clinical opinion they could use to reject compensation claims, an inquiry has revealed. The damning conclusions into Victoria’s WorkSafe scheme are the result of an inquiry by the state ombudsman.
The inquiry found that insurance companies working for the scheme, which is meant to fund rehabilitation and compensation to those injured in the workplace, were using a range of dirty tricks to avoid paying out.
In one case, an individual killed themself after losing medical treatments for a stress disorder resulting from workplace sexual assault and harassment (see box below for full details).
One of their children told the ombudsman: “While my [parent] was cut off from [their] medical expenses … we struggled to keep up with them.
“[Their] treatment was denied and the sheer stress and anxiety caused [them to] get worse and I watched [them] lose all hope …
“My [parent] proceeded to commit suicide … and passed away … [A few days later] I received letters … stating that every program had been approved and their medical expenses reinstated.
“I burst into tears and couldn’t look at them …
“The help that the treatments could have given my [parent] are unimaginable … [they] may still be alive …”
In all, five insurance companies operated as agents for the WorkSafe scheme — including Allianz, CGU, QBE and Gallagher Bassett.
But according to Victorian Ombudsman Deborah Glass, vulnerable people were harmed as a result of cases being deliberately delayed or cancelled on flimsy medical pretexts.
Ms Glass said, under the scheme, the agents paid independent medical examiners (IMEs) to carry out assessment on claimants.
The results of these assessment were meant to be used by the agent to make informed decisions about a worker’s entitlements — both to compensation payments as well as medical services.
However, she said some agents “doctor shopped”, simply chosing IMEs on the basis that they were good for the terminations of payments.
Another tactic used by the agents was simply to cherry-pick the findings of the medical assessments, in some cases using just one line an IME report to reject a claim.
“There were also cases in which agents had failed to provide crucial background information about injured workers to IMEs when they were forming their opinion,” Ms Glass wrote.
One injured worker complained to CGU, saying: “My issue is that you have only included half of the information on the referral provided by [my GP] …
“By reading this full referral and not selectively removing elements that are detrimental to your justification, it can clearly be seen that the injured … [arm] is directly related to my approved workcover claim for PTSD. I find it quite disturbing that you feel that you can use poetic licence on a medical document to add weight to your decision.”
Ms Glass said, in general, the WorkSafe scheme, which deals with some 90,000 claims every year, worked.
But she said it became clear that with complex cases — about 20% of the workload — a high proportion of claims were rejected by the agents only to be subsequently overturned on appeal.
She said, in some cases, agents made unreasonable decisions “in order to achieve the financial rewards” available under their contracts with the Victorian Government.
“There is also evidence that four of the five agents manipulated, or that staff contemplated manipulating, claims in order to achieve the financial rewards or avoid penalties,” she added.
Case study: Injured worker suicides after entitlements are finally reinstated
A business manager lodged a claim with CGU for a psychological condition that developed after having been sexually harassed and assaulted by their boss.
CGU initially rejected the claim. After disputing the matter at conciliation, the case proceeded to the magistrates court — over a year after the initial rejection.
The magistrate found that “serious sexual misconduct and harassment” had occurred and that the worker had sustained a work-related injury as a result, which had rendered them incapacitated and needing medical treatment.
Over the coming years, CGU received several medical reports from both IMEs and the worker’s doctors.
These reports provided relatively consistent opinions on the worker’s condition and incapacity for work.
CGU funded a range of treatments for the worker, including sessions with a psychiatrist, medication, psychiatric inpatient stays and day programs.
CGU did not provide relevant historical records to an IME
Following a request in mid-2015 from the worker’s treating psychiatrist for the worker to participate in further programs, CGU sent the worker to be examined by an IME.
CGU stated the purpose of the examination was to obtain an opinion on the reasonableness of the requested programs, whether the worker’s condition continued to be work-related and whether the treatment they were receiving was reasonable.
In its request to the IME, CGU failed to provide any historical medical reports from the time of the worker’s initial diagnosis and claim acceptance. Nor did it provide any details regarding the court finding.
In her report to CGU, the IME provided a different diagnosis to the worker’s treating psychiatrist and previous IMEs.
The IME concluded that as a result of the work incident, the worker had suffered a work-related aggravation of a pre-existing condition, but that the work-related aggravation had now ceased.
She stated the worker would continue to require treatment indefinitely but this was no longer for a work-related injury.
On numerous occasions in her report, the IME noted the lack of documentation and information provided to her by CGU.
She made comments such as “I was not provided any documentation to assist”, “based on my clinical examination but no further evidence provided …” and “I would have been assisted in providing this report by additional documentation in order to answer the specific questions posed for the examination in more depth”.
On the basis of the IME report, CGU rejected the request for program support and terminated all entitlements.
Based solely on the IME report, CGU issued notices to the worker rejecting the request for the further programs and terminating all of their entitlements.
The notices made no reference to other medical evidence, such as reports from the worker’s treating psychiatrist, which did not support the decisions.
Nor did CGU document any rationale as to why they chose to rely solely on the IME’s opinion over all other available evidence.
The worker subsequently lodged a request for conciliation.
CGU failed to provide relevant history a second time
In a supplementary report, the IME again confirmed the worker required treatment but stated she considered the worker’s work injury had ceased, instead referring to a pre-existing condition.
Again, the IME made comments about the lack of information provided by CGU, including that she had “not been provided with sufficient information to make connection between this deterioration in mental state and work related injury which occurred in [the mid-2000s]”.
CGU provided partial history when requesting a second supplementary report
Following concerns raised by the worker’s treating psychiatrist and the provision of further medical evidence to CGU supporting an ongoing nexus between the worker’s condition and work-related incidents, CGU sought a second supplementary report from the IME. In this request, CGU provided the IME with copies of two previous IME reports as well as recent reports from the worker’s doctors.
However, CGU again failed to provide any information about the Magistrates Court finding on which CGU’s acceptance of the claim was based.
In response, the IME again noted that “the circumstances of [the] events/sexual assaults are not clear”.
Following Medical Panel opinion, CGU’s decision was overturned
Further medical reports provided to the Accident Compensation Conciliation Service (ACCS) for the purpose of conciliation supported the treating psychiatrist’s view on the continuing relationship between the worker’s condition and workplace incidents.
The ACCS referred the matter to a Medical Panel, which concluded that the claimed work-related injury still materially contributed to the worker’s condition.
The Medical Panel noted the IME’s opinion; however, it stated “on the basis of its own history taking and examination and clinical judgement and experience, the Panel formed a different diagnostic opinion”.
The panel also noted that its opinion regarding the worker’s diagnosis was consistent with all other medical evidence, with the exception of one IME — the IME used by CGU to terminate the claim.
CGU reinstated the worker’s entitlements and approved the requested programs on the basis of the Medical Panel opinion. Sadly, however, the worker committed suicide shortly after this decision.
In response to the draft report, CGU stated:
“Mental health and suicide is complicated and there are a multitude of factors that can play a part in suicide. The indications are that there are matters outside of just the work related component that may have contributed.
“We note that the IME has noted that she was not provided with information relating to the workplace incident that caused the initial injury.
“The matters surrounding the incident were not in dispute.
“The claim was subject of a Magistrates Court hearing where the Magistrate found in favour of the injured worker and CGU has not disputed the injured worker’s allegations surrounding the workplace incident.
“CGU would note that the IME was provided with previous IME reports … which themselves reference earlier material. CGU acknowledges that improvements can be made to the decision making around information that is provided to IMEs …”
Source: Victorian Ombudsman report: Investigation into the management of complex workers compensation claims and WorkSafe oversight