ADJOURNMENT;Workplace Injuries – 17 Jun 2014

My contribution tonight is about workplace safety, particularly in the Australian Public Service. It goes to the understanding that, while the consequences of being injured at work can be devastating for injured workers and their families, the consequences of not handling their injury correctly can be just as devastating, if not worse.

I want to talk about a case in point. For many years, I have been asking questions in Senate estimates about a constituent in my home state of Tasmania. Due to her employer’s mishandling of her rehabilitation and Comcare’s mishandling of her claim, she has been unable to return to work or to have the quality of life she enjoyed before she suffered her injury in 1988. My constituent has tried as hard as she can to get back any semblance of quality of life, but she continues to be burdened by the financial, the physical, the psychological and the emotional scars of not only the original injury but also the ordeal of trying to get justice from a broken workers compensation and rehabilitation system.

The history of my constituent’s claim is absolutely riddled with errors of administration, failures to follow legislative requirements and a strong resistance by Comcare and her employer to accept the role they have played in almost completely ruining her life. The compensation available to injured Commonwealth employees and the procedures to be followed in handling their rehabilitation are enshrined in the Safety, Rehabilitation and Compensation Act 1988. The SRC Act sets out the compensation that injured employees are entitled to, and it sets out clear procedures for employers to follow in rehabilitating an injured employee.

My constituent’s case demonstrates that the failure to properly follow these procedures can actually lead to an injury becoming much worse. An injury which would normally cause a worker to have a temporary absence from work can become a permanent barrier to any future prospects of employment. It can end shatter their hopes, severely disable their social lives and destroy their careers and even their marriages.

To provide some background on this matter, I will take you back to the beginning. In 1988, my constituent suffered a psychological injury at work and was diagnosed with post-traumatic stress disorder. She spent just over five months on leave, waiting for someone to consult her about a rehabilitation plan. When she was finally contacted, she was told that a meeting would be happening that very day in her home. Of course, she initially refused to accept the meeting but she was told if she did not cooperate, Comcare could stop her compensation payments. If you know anything about post-traumatic stress disorder, you can understand the effect that this would have had on my constituent. The nature of the incident that caused the initial injury had caused my constituent to fear for her safety, and the safety of her then eight-year-old son.

My constituent was presented with a rehabilitation plan when they turned up to her home that she had not seen or been consulted on and was told she had to sign it at that meeting under the threat of losing her compensation payments if she did not do so. In developing the rehabilitation plan, there had been no consultation with my constituent’s treating medical practitioners—her GP or her psychiatrist—on what kind of program was needed to restore her to health and allow her to return to work. In fact, it took until 2011—23 years—before there was any consultation with her treating professionals.

She signed the plan, under protest of course, and saw her psychiatrist the next day. Her psychiatrist wrote to Comcare and explained that their actions had exacerbated her condition. Years later, an independent review of her claim found that, in the early years of her ordeal, had a proper rehabilitation program been put in place in consultation with her treating medical practitioners, she may have been able to return to remunerative employment.

The remaining history of her dealings with Comcare from 1988 to the present is too lengthy and complex for me to outline in my contribution tonight. I will just say that, over many years, she has continuously had to go through reams of documents to correct errors on her file and errors in written correspondence—not just once but time and time again. She had been fighting for many years before she sought my assistance in 2009 to assert her rights to a proper rehabilitation program, developed in consultation with the medical practitioners who are treating her, and to ensure she has received the compensation she is entitled to under the SRC Act.

Even if my constituent received the compensation she was entitled to under the Safety, Rehabilitation and Compensation Act, it would not account for the fact that she did not return to work because her employer failed to restore her to health and return her to work. It does not account for the 26 years of lost career opportunity, the loss of prospects for experience, skills development and promotion. It does not account for the damage to her physical and psychological health caused by the mismanagement of her claim and rehabilitation, and the years of lost opportunity of an active social life. She deserves additional compensation, and there are a number of avenues through which this could be sought. My constituent lodged a claim under the Compensation for Detriment caused by Defective Administration scheme with her employer. She could not lodge the claim with Comcare because they are not covered by the CDDA scheme. Her employer has notified her that they will instead be considering her claim under section 73 of the Public Service Act.

I have tried to encourage Comcare to consider supporting an application for an Act of Grace payment if her claim is unsuccessful. However Comcare’s CEO, Paul O’Connor, responded that he did not believe the independent review of my constituent’s claim identified any ‘unreasonable lapses or failures of administration’. I consider this an extraordinary statement given the history of my constituent’s claim.

My constituent is not the only injured Commonwealth employee who has long-term outstanding issues regarding the administration of her claim. Recently, an independent review was conducted into recovery and support services provided in long-term Comcare cases. The review examined the history of the claims of 14 injured employees, seven of whom were interviewed for the purposes of the review.

The review found that there are three recurring themes that Comcare needs to address to improve the management of their claims. A disconnection was found in interactions between Comcare, injured workers and their employers. This leads to confusion concerning the roles and responsibilities of parties involved in the case. The legislation is complex and injured workers do not understand their entitlements or the factors Comcare considers when determining eligibility. And finally, Comcare’s communication with injured workers is variable and this has a negative impact on resolving claims.

It is not enough for Comcare to say they will improve the way they deal with injured employees. There is a legacy here that has not been properly addressed. I will give credit where credit is due. Comcare have worked with my constituent’s employer to put in place a proper rehabilitation plan since I became involved in 2009. They have negotiated a clear process for resolving her claim. And they have undertaken to correct errors on her file, and had an independent review conducted to look at whether she has received her legal entitlements.

However, there is significant doubt whether my constituent would have come so far had it not been for my active intervention. What Comcare have yet to do is actively support my constituent in seeking additional compensation for the impact their past failures have had on her life. They have yet to respond to, or even agreed to respond to, specific questions about the calculation of her entitlements. And both Comcare and my constituent’s employer still have a significant way to go to improve their communication and management of her claim and rehabilitation.

I want to be very clear: this is not a criticism of the current government, nor of the previous government. I have been raising these issues over the past five years with as much force and vigour as I am today. And with the six years I have left in this place, I will continue to raise these issues with the same determination until they are resolved, no matter who is in government. But it is incumbent on the government—in particular, the Minister for Employment, Senator Abetz—to ensure that Comcare and other government agencies are accountable for past failures to properly rehabilitate injured employees. They must be accountable for the failure to communicate with these workers, to explain their rights and entitlements, and to actively help them explore their options rather than advising, as Comcare did in my constituent’s case, that they will ‘only respond to specific questions’.

Every effort must be made to restore these workers as much as possible to their full health, and they must be offered additional compensation for the detriment they have suffered through failures of administration. Above all else, my constituent, and injured workers in a similar position to hers, must receive justice.