Annual Report 2011/2012 - REG SA

Annual Report 2011/2012

South Australian WorkCover Ombudsman Annual Report 2011-2012

Office of the W O R K C O V E R O M B U D S M A N

South Australia

ANNUAL REPORT 2011-2012


Letter to the Honourable Minister for

Workers Rehabilitation

The Honourable, John Snelling, MP Minister for Workers Rehabilitation Parliament House Adelaide It is my duty and privilege to submit the South Australian WorkCover Ombudsman’s Annual Report for 2011/2012 to the Minister as required, pursuant to subsection (1) of section 99L of the Worker’s Rehabilitation and Compensation Act, 1986. Mr W I Lines WorkCover Ombudsman September 2012 Location/Mail L10, 30 Currie Street Adelaide SA 5000 Telephone 08 8463 6593 Toll Free 1800 195 202 Facsimile 8204 2169 Email [email protected] Internet www.wcombudsmansa.com.au

mailto:[email protected]

http://www.wcombudsmansa.com.au


Contents Introduction 1

The Office of the WorkCover Ombudsman 2

Review of the Year’s Work 4

Review of Decisions to Cease Payments 6

Complaint Investigations 10 Review of Internal Complaint Handling 15 Processes Appendix Part One 16 Statistics – General Enquiries Office Expenditure

Appendix Part Two 17 Flow Chart for Complaint Investigations

Recommendations Issued


1

Introduction The Office of the WorkCover Ombudsman is established pursuant to Part 6D of the Workers Rehabilitation and Compensation Act 1986 and commenced operation on 1 July 2008. The Office was created following the Clayton Walsh Report of December 2007 which recommended that the Office be established for the purpose of discharging a complaints investigation role in relation to the operation of the WorkCover scheme as well as reporting on any systemic issues that lie behind patterns concerning individual complaints (Recommendation 65). The Report also recommended that the Office have a role in monitoring the nature and quality of decision making in relation to key impact areas within the scheme such as the proposed 130 week review and termination of payments (Recommendation 26). The Minister for Industrial Relations appointed Wayne Lines as the acting WorkCover Ombudsman effective from 1 July 2008. In June 2009, he was appointed as the inaugural WorkCover Ombudsman for a period of 5 years commencing from 1 July 2009. On 23 June 2011 the administration of the Workers Rehabilitation and Compensation Act 1986 was committed to the Minister for Workers Rehabilitation. Mr W I Lines WorkCover Ombudsman


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The Office of the WorkCover Ombudsman What does the WorkCover Ombudsman do? The functions and powers of the WorkCover Ombudsman are set out in sections 36(15) and 99D to 99G of the Workers Rehabilitation and Compensation Act 1986 (the Act) and give the WorkCover Ombudsman a range of roles that are designed to support the fair and effective operation of the Act. These roles may be described as:

• Identifying and reviewing issues arising out of the operation of the Act and making recommendations for improvement.

• Receiving and investigating complaints about the administration of the Act, including complaints about the rehabilitation and return to work of injured workers, and endeavouring to resolve those complaints.

• Encouraging and assisting WorkCover and employers to establish their own complaint-handling processes and procedures.

• Reviewing decisions to cease weekly payments to injured workers and suspending those decisions whenever they are not reasonably open.

The WorkCover Ombudsman has the powers necessary for the carrying out of these functions and can require a person to provide information in writing, produce documents or attend in person to answer questions. Section 99H of the Act provides that the WorkCover Ombudsman must carry out his functions and powers independently, impartially and in the public interest. Jurisdiction It is clear from subsection 99D(1) of the Act that the WorkCover Ombudsman’s functions and powers are confined to the operation and administration of the Act. The WorkCover Ombudsman has no power to investigate any issues related to the operation of the WorkCover Corporation Act 1994 or the Fair Work Act 1994, although workers compensation issues sometimes overlap with the provisions of these Acts. The WorkCover Ombudsman has no jurisdiction to investigate matters that are, or are capable of being, the subject of proceedings in the Workers Compensation Tribunal under Parts 6, 6A and 6B of the Act or before Medical Panels SA under Part 6C of the Act or before the Levy Review Panel under Part 5 of the Act. In addition, the WorkCover Ombudsman may not investigate a matter that has become the subject of legal proceedings. The WorkCover Ombudsman may investigate complaints about Rehabilitation and Return to Work Plans even though disputes about Plans may be heard by the Workers Compensation Tribunal under section 28B of the Act (which comes within Part 3 of the Act). Provided no legal proceedings have actually been commenced in connection with the dispute, the WorkCover Ombudsman may still be involved in helping to resolve disagreements about Rehabilitation and Return to Work Plans. The WorkCover Ombudsman may perform the functions under 99D(1) of the Act on his own initiative, at the request of the Minister for Industrial Relations, or on receipt of a complaint by an interested person.


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However, the WorkCover Ombudsman has a wide discretion to refuse to investigate a matter if of the opinion that:

The matter raised is trivial The complaint is frivolous, vexatious or not made in good faith The complainant has insufficient personal interest in the matter The complainant has failed, without good reason, to take reasonable steps to

resolve the matter through another complaint-handling process The investigation is unnecessary or unjustifiable The matter of the complaint should be dealt with under another Act or by another

person or body There is some other reasonable cause for discontinuing the investigation.

Referral and Advisory Service Consistent with the role of supporting the fair and effective operation of the Act, the Office provides assistance to many people who contact us. It is often possible to give people some guidance about the issues they raise or provide them with information about the scheme and the effect of legislative changes to the Act on entitlements and obligations. If their enquiry is about a matter outside jurisdiction we refer them to another appropriate source of assistance. Provision of Training and Education By invitation, the WorkCover Ombudsman has presented seminars and workshops to a variety of organisations and small groups. The presentations are an opportunity to increase awareness of the operation of the Office and the process of investigating complaints. They are also a means of educating compensating authorities and rehabilitation providers about some of the issues affecting the scheme and how they may improve their service delivery.


4

Review of the Year’s Work The key activities of the Office in 2011/2012 may be summarised as follows:

Enquiries 1540 Complaints 199 Section 36(15) applications 101

Handling enquiries from members of the public about the scheme or particular issues related to a claim is a significant part of the Office’s work with an average of 130 enquiries per month (see Appendix Part One). In the 2011/12 year, 21 complaints were assessed as being beyond jurisdiction, 18 were assessed as not requiring an investigation and 17 were withdrawn. Another 125 were resolved after investigation. I issued 12 recommendations on 8 separate complaints in response to complaints investigated. As at 30 June 2012, 28 complaints were at various stages of consideration. While a total of 101 applications to review decisions to cease weekly payments were received, 8 of these were discontinued before a review was completed. Of the 93 decisions reviewed 13 were suspended on the basis that the decision was not reasonably open. These figures result in a suspension rate of 14%; about the same as the previous 2 years. Pursuant to Section 99D(1)(a) of the Act, I conducted a review of WorkCoverSA’s process for evaluating self-insured employers and recommended a change to the performance standards and to the internal dispute resolution process. WorkCoverSA has refused to implement either recommendation. Pursuant to Section 99D(1)(d) of the Act, I reviewed WorkCoverSA's Memorandum of Agreement with Employers Mutual Ltd which adopts a Complaint Handling Manual for managing all complaints made to WorkCoverSA and Employers Mutual. By invitation, I addressed a variety of forums to explain the function and procedures of the Office or to give instruction on a topic related to the scheme. These included:

Self-Insurers of South Australia 2011 Conference “Closing the Loop” Effective Australia RRTW Co-ordinator Seminar Registered Employers Group SA Inc AGM - “Section 58B and the WorkCover Ombudsman’s Jurisdiction” SA Health Workforce Division Seminar - “Managing Unsatisfactory Performance and Misconduct” Natalie Botroff and Associates - “Rehabilitation Consultants and the Obligation to Maintain Confidentiality” Personnel Placement Consultancies Staff Training SA Health Workers Compensation Tribunal Training Program Public Sector Workforce Relations IM Managers’ Group - “Section 35B Work Capacity Reviews” Crown Solicitor’s Office - Civil Litigation Seminar WorkCover Service Centre Staff Training Session Personnel Placement Consultancies - “Rehabilitation Consultants and the Obligation to Maintain Confidentiality”


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In addition, I presented a paper to the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation in September 2011 on Return to Work Training Practices. In June 2012, the Office relocated to Level 10, 30 Currie Street, Adelaide where both the Equal Opportunity Commission and the Employee Ombudsman have offices. Pursuant to Section 99J of the Act, the Office is funded by the Compensation Fund. A statement of the Office’s expenditure is provided in Appendix Part One.


6

Review of Decisions to Cease Payments Introduction Section 36(5) of the Workers Rehabilitation and Compensation Act 1986 stipulates that the operation of a decision to discontinue or reduce weekly payments is not affected by the injured worker lodging a notice of dispute in the Tribunal. The WorkCover Ombudsman is empowered by section 36(15) to review decisions to discontinue weekly payments and suspend the operation of those decisions where it appears to him that the decision was not reasonably open. In the event that the decision is suspended, the worker is entitled to a continuation of their weekly payments while the dispute is proceeding in the Tribunal, otherwise the decision takes effect. This has been the position in relation to decisions to cease weekly payments since amendments to the Act took effect on 1 July 2008. A worker may apply to me for a review of a decision if the following preconditions are met: 1. The decision is a decision to discontinue his or her weekly payments under

section 36(1) of the Act; ie. not a reduction of weekly payments under section 36(2) of the Act or a rejection of a claim for weekly payments under section 53 of the Act or a suspension of weekly payments under sections 38(6) or 98G(5) of the Act;

2. The worker has received notice of the decision to discontinue weekly payments;

3. The worker has lodged a notice of dispute against the decision at the Workers Compensation Tribunal.

An application for a review is made informally by sending me a copy of the notice of the decision and the notice of dispute filed at the Tribunal with a written request that I undertake a review. I then give the decision maker 7 calendar days to provide me with copies of the documents relevant to the decision and in most cases I am able to complete my review within 14 days of receiving the application. Review Applications The table below provides the statistics for applications received by me in the 2011/2012 year. Table 1. Section 36(15) Applications: 1 July 2011 to 30 June 2012 Decisions by:

Suspended

Application Withdrawn

No

Jurisdiction

Not

Suspended

Total

Suspension

Rate

EML (Registered Employers)

7

6

1

64

78

9.9%

Self-insured Employers

6

1

0

16

23

27.3%

Total

13

7

1

80

101

14%


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The number of disputed decisions reviewed by me was the same as the previous year. Statistics received from the Workers Compensation Tribunal indicate that there has been a dramatic reduction in the number of section 36 decisions disputed in the Tribunal; down from an average of 98 disputes per month in the first half of the year to 42 per month in the second half of the year. There is no obvious reason for this decline in section 36 disputes. Even so, the number of decisions reviewed by me represents about 11% of section 36 decisions disputed in the Tribunal over the same period, which is slightly up from 8% in the 2010/11 year. Tables 2.1 and 2.2 compare the results of reviews under section 36(15) of the Act for each of Employers Mutual and Self-insured Employers for the 4 financial years since 1 July 2008. Table 2.1. Comparison of Suspension Rates - EML (Registered Employers)

Year Suspended Not Suspended

Total Reviewed

Suspension Rate

2008/09 40 54 94 42%

2009/10 9 127 136 6.6%

2010/11 6 57 63 9.5%

2011/12 7 64 71 9.9%

Table 2.2. Comparison of Suspension Rates - Self-insured Employers

Year Suspended Not Suspended

Total Reviewed

Suspension Rate

2008/09 13 30 43 30%

2009/10 19 38 57 33.3%

2010/11 7 23 30 23.3%

2011/12 6 16 22 27.3%

Suspension Rates The suspension rate has been around the 14% mark for the last 3 years. I consider 14% to be an acceptable level. Employers Mutual’s suspension rate is under 10% as it was the previous year. The suspension rate of 27% for self-insured employers is still too high but the numbers involved are relatively small. Work Capacity Reviews Sections 35B and 35C of the Act came into effect from 1 April 2009. These provisions were introduced by the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 and govern the process for determining whether a worker’s weekly payments may be discontinued after 130 weeks of entitlements.


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If a work capacity review results in a decision to cease the worker’s weekly payments, I have jurisdiction to review the decision under section 36(15) of the Act because the ground for the decision is prescribed by subsection 36(1)(i) which allows payments to be discontinued where “the worker’s entitlement to weekly payments ceases because of the occurrence of some other event or the making of some other decision or determination that, under another provision of this Act, brings the entitlement to weekly payments to an end or the discontinuance of weekly payments is otherwise authorised or required under another provision of this Act”. Section 35B of the Act is one such provision that brings the entitlement to weekly payments to an end if certain criteria are met but the actual decision to discontinue payments is made pursuant to subsection 36(1)(i) of the Act. Since the introduction of section 35B work capacity reviews, they have become a prominent ground for discontinuing weekly payments. In 2011/12 over 60% of Employers Mutual’s section 36 decisions reviewed by me were based on a section 35B work capacity review. The following Table 3 summarises my review of decisions to stop payments as a result of a section 35B work capacity review in the 2011/12 year: Table 3. Review of Section 35B Decisions Decisions by:

Suspended

Not

Suspended

Total

Suspension

Rate

EML (Registered Employers)

2

41

43

4.7%

Self-insured Employers

1

1

2

50%

Total

3

42

45

6.7%

These figures are a subset of the statistics presented in Table 1 above. As for previous years, they demonstrate that Employers Mutual is conducting many more work capacity reviews than self-insured employers and that the documentation supporting Employers Mutual’s decisions has been of a reasonably good standard.


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Submission to the Review of the Impact of the Amendment Act 2008 When the review of the impact of the 2008 amendments was undertaken in the first half of 2011, I provided written submissions calling for improvements to the drafting of sections 35B, 35C and 36. I submitted that: • Section 35B(1) be amended so that it clarifies the need for the compensating

authority to make an assessment of the worker’s work capacity prior to any discontinuance of payments after 130 weeks of entitlements;

• Section 35B be amended so that an assessment under section 35B(1) is required to be undertaken in the context of and in accordance with the procedure of a section 38 review of a worker’s work capacity;

• Provided a section 35B assessment follows the procedure in section 38, the provisions of section 35B(4), (5), (6), (7) and (8) giving a worker 13 weeks notice of a discontinuance if the worker was totally incapacitated at the end of 130 weeks of entitlements should be deleted;

• Section 35C requires substantial redrafting to simplify it and make it fairer; • Section 36(15) be amended to (a) allow the WorkCover Ombudsman to review

all section 36 decisions whether they result in a discontinuance or reduction of weekly payments, and (b) increase the WorkCover Ombudsman’s discretion to suspend decisions in cases where the decision is not compelling or fails to comply with the Act or Regulations or is otherwise unsound.

The Review referred to these submissions with approval and I believe that the changes recommended by me are still needed. In particular, there is no doubt that workers suffer financial hardship when their weekly payments are either stopped or dramatically reduced and they have to wait the outcome of their disputes in the Tribunal. My power to suspend the operation of a decision may only be exercised if I find that the decision is not reasonably open. In my view, it is relatively easy for compensating authorities to demonstrate that their decisions are reasonably open and avoid having their decisions suspended. It would be fairer if they had to show that their decision was compelling rather than merely reasonably open. However, as yet it there is no move on the part of the Government to adopt my recommendations.


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Complaint Investigations Introduction The WorkCover Ombudsman may receive complaints from anyone who is dissatisfied with the way services have been delivered in relation to the operation of the Workers Rehabilitation and Compensation Act 1986. A complainant may be an injured worker, an employer, a health provider, an individual or an organization, a private business or government agency. In accordance with Section 99D(4) of the Act, the Office established a scheme for receiving and dealing with complaints. The scheme is represented by a flow chart that has been posted on the Office website (see Appendix Part Two). Procedure When a complaint is received, I assess whether the subject matter of the complaint is within my jurisdiction and, if it is, whether in the exercise of my discretion I ought to investigate it. As much as possible, I encourage complainants to take up their complaint directly with the organisation against which the complaint is directed if they have not already. I usually require this to be done before I agree to undertake an investigation. If I determine that I have jurisdiction to investigate and that in my discretion an investigation should be undertaken, my investigation officers will write to the person or organization complained against (the respondent) seeking an explanation, from their point of view, of what has occurred and whether they agree with any aspect of the complaint. After receiving the report, I decide whether further investigation is required or if I require more information from the complainant. I also consider whether the matter may be resolved by a conciliation conference or by way of issuing formal recommendations. Included in the category of complaints are those enquiries that have required my Office to engage in an informal investigation with a respondent. Most of these informal investigations are conducted by email and telephone and do not involve the respondent in preparing a formal report. This has led to many complaints being resolved quickly as the response provided by the respondent has given an adequate explanation of the situation that gave rise to the complaint or has advised on appropriate action that has been taken to address the problem. Investigations and Recommendations In the 2011/12 year my Office received 199 complaints on a range of issues. Approximately 35% of complaints relate to delays in making approved payments, replying to enquiries or completing certain processes. Coincidentally, the same issue generated the same proportion of complaints in the 2010/2012 year. It is a significant issue that has to be addressed at the staff level (ie. training and performance management) rather than in the area of procedures and policies. The table below sets out the number of complaints received in the 2011/2012 year according to complaint subject. Complaints relating to delays by case managers are highlighted in blue.


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Table 4: Complaints Received 2011/2012

Complaints about: Registered Employers Scheme WorkCoverSA Self-Insured

Scheme Total

COMMUNICATION

Behaviour / conduct of case manager 8 0 1 9

Behaviour / conduct of staff member 0 1 0 1

Lack of information 5 0 0 5 Response not timely 14 1 1 16

CONFIDENTIALITY

Breached by Case Manager 1 0 1 2

Breached by RTW Co-ordinator 0 0 1 1

DETERMINATION

Delay by Case Manager 11 0 0 11

Investigation of claim 1 1 0 2

Procedural Fairness 1 0 0 1 RISE 1 0 0 1 Section 32 0 0 1 1 Section 35B/C 2 0 0 2 Section 43 1 0 0 1 Section 53 1 0 0 1 Surveillance 1 0 0 1

INCOME MAINTENANCE

AWE calculation 0 1 0 1

Back pay 8 1 2 11

Incorrect amount paid 2 0 1 3

Incorrect tax deducted 7 1 0 7

Information requested 3 0 0 3

Leave entitlements 1 0 0 1 Not paid / delays 15 0 1 16 Overpayment / recovery by compensating authority 2 0 0 2

Reimbursement to employer 6 0 0 6

Step Downs 1 0 0 1

LEVIES/FINES

Calculations 0 2 0 2

Obligation to pay 0 5 0 5

MISCELLANEOUS Case Manager misconduct / behaviour

2 0 0 2

Compliance with WCT Orders 2 0 1 3

Industrial Relations 1 0 2 3

Internal Complaint Process 0 0 1 1

Legal Costs and Disbursements 0 0 1 1

Other 2 1 0 3

Section 43 payment delayed 2 0 1 3

Section 107B 1 1 4 6

PROVISIONAL LIABILITY

Amount paid 2 0 0 2

Employer Entitled to Waiver 2 0 0 2


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Not approved within required time

2 0 1 3

Reasonable excuse 0 0 1 1

REDEMPTION

Negotiations 0 0 1 1

Payment delayed 0 0 3 3 REHABILITATION Assistance with job searching 1 0 0 1 Breach of Mutuality 0 0 1 1 Change of rehab provider requested 1 0 0 1

Compliance with Section 58B 3 2 3 8 Consultation 1 0 0 1

Content of RRTW/RP 2 0 0 2 Employer not complying with RRTW/RP 1 0 2 3

NET Process 3 0 0 3

No rehabilitation provided 3 0 1 4

Provider behaviour / conduct 2 0 0 2 Retraining declined / not offered 3 0 1 4

Termination of Employment 0 0 1 1

SECTION 32 EXPENSES

Delay in approving payment 9 0 1 10

Information requested 2 0 0 2

Worker not fully reimbursed 4 0 0 4

Worker not reimbursed within timeframe

2 0 2 4

TOTAL 145 17 37 199

Resolution of Complaints During the year I issued 12 recommendations on 8 separate complaints. These recommendations have been collated in chronological order and annexed to this report in Appendix Part Two. The number of formal recommendations has reduced markedly from previous years. The main reason for this is that in the first few years of the Office’s operation, several policy and procedural deficiencies were identified and required me to make recommendations to have them improved. With those improvements now implemented, in this last year, the Office has seen less procedural or “system” type deficiencies and investigations are dealing more with lapses by case managers in complying with the procedures that are in place. In most of these cases, the compensating authorities have been able to address such problems directly with the case manager without me needing to issue a formal recommendation. 189 complaints were finalised this year. 166 (89%) of these were completed within 3 months and 20 (10%) of them were completed between 3 and 12 months of receiving them. Some of these were complaints that had been received the previous year and the investigation had carried over into the 2011/12 year. 62% of complaints were finalised after the respondent provided me with a response to the complaint.


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Table 5: Outcomes of Completed Complaints 2011/2012 Completed

within 3 months

Completed between 3

and 12 months

Completed after 12

months or more

Total

Notice of Resolution

1 5 1 7

Notice of Recommendation

1 5 2 8

Resolved after response from respondent

112 6 0 118

No jurisdiction

20 1 0 21

Investigation declined

17 1 0 18

Complaint withdrawn

15 2 0 17

Total 166 20 3 189 Recommendations not implemented The Office continues to enjoy a high level of cooperation by WorkCoverSA, Employers Mutual and Self-insured employers. Although my recommendations are not enforceable by recourse to litigation, compensating authorities have accepted nearly all of the recommendations issued in the 2011/2012 year. There are two notable exceptions. On 26 August 2011, I issued a recommendation that WorkCoverSA abandon its blanket ban on redemption of weekly payments and develop and implement a redemption policy in accordance with Recommendation 56 of the Clayton Walsh report of December 2007 and section 42 of the Act that gives proper, genuine and realistic consideration to the merits of a worker’s application for redemption of weekly payments and/or medical expenses. The recommendation resulted from an investigation of a complaint from an injured worker’s psychologist who was surprised to find that WorkCoverSA refused to contemplate a redemption of its liability for her client even though she believed that a redemption would be in the best interests of both her client and the scheme. My investigation revealed that in September 2010 the WorkCover Board adopted a policy of refusing to consider any redemption of liabilities. In my view, this is inconsistent with section 42 of the Act which does allow redemptions in limited circumstances. It also creates the discriminatory situation where those workers covered by self-insured employers may receive a redemption lump sum whereas those who are covered by WorkCoverSA have no possibility of a redemption even if their circumstances warrant it. The WorkCover Board has refused to revise its no redemption policy in spite of my recommendation.


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In April 2012, I completed a review of WorkCoverSA’s Self-insured Employer Evaluation Process. WorkCoverSA follows this process for the purpose of determining whether the self-insured status of an employer should continue, and if so, for what period. My review was initiated by a complaint received by Self-insurers of South Australia Inc (SISA). However, there was insufficient evidence to establish that WorkCoverSA had a case to answer as to a denial of procedural fairness or misconduct on the part of individual evaluators. In the course of assessing SISA’s complaint, I identified a number of issues concerning the process that needed exploration with WorkCoverSA. I therefore conducted a review of those issues pursuant to my power under section 99D(1)(a) of the Act (as distinct from a complaint investigation under section 99D(1)(b) of the Act). The outcome of the review was that I recommended that WorkCoverSA revise the performance standards and Natural Consequences Model contained in the Code of Conduct for Self-insured Employers to: a. incorporate a combination of system requirements and set targets for reducing

work injuries and claims costs and for improving rehabilitation and return to work outcomes;

b. require periods of renewal of self-insurance to be set by reference to a self-insured employer’s performance against targets for reducing work injuries and claims costs and for improving rehabilitation and return to work outcomes as well as system requirements;

c. reflect the importance of achieving good outcomes in OHSW and injury management by allowing self-insured employers to qualify for a 3 year renewal period if they meet OHSW and injury management targets despite not conforming to all system requirements.

I also recommended that the Evaluation Practice Manual be amended to provide self-insured employers the option of either having the WorkCoverSA evaluator’s findings reviewed by another WorkCoverSA evaluator or paying for the evaluator’s findings to be reviewed by an external auditor selected by the self-insured employer from a panel of auditors previously approved by WorkCoverSA. WorkCoverSA declined to implement either recommendation. I believe that the changes I recommended to the Code of Conduct for Self-insured Employers would have increased self-insured employers’ accountability for improving workplace safety and injury management outcomes with the evaluation process more focussed on employers achieving greater safety at work and better results in injury management. As it stands, the evaluation process is concerned with compliance with standards that relate only to processes, systems and procedures. I doubt that this is in the public interest. However, WorkCoverSA is unlikely to change its approach on this issue any time soon. Code of Claimant Rights In last year’s annual report I highlighted the need for a Code of Claimants’ Rights to be prescribed pursuant to Section 123B of the Act. Such a code would define the expectations placed on WorkCoverSA and self-insured employers and enable injured workers to raise objections if, in their view, expectations are not met. It is an important component of the package of amendments introduced in 2008. I note with disappointment that no progress seems to have been made in regard to this topic.


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Review of Internal Complaint Handling Processes Introduction Under section 99D(1)(d) of the Act, the WorkCover Ombudsman has the specific function of encouraging and assisting WorkCoverSA and employers to establish their own complaint handling processes and procedures with a view to improving the effectiveness of the Act. This function is consistent with the WorkCover Ombudsman’s discretion under section 99D(5) of the Act to refuse to investigate a complaint if the complainant has failed, without good reason, to take reasonable steps to resolve the matter through another established complaint-handling process. In my view, I should only exercise the discretion on this ground if I have confidence in the internal complaint-handling processes of the organisation that is the subject of complaint. I, therefore, have an interest in ensuring that WorkCoverSA and self-insured employers have effective internal complaint handling processes. WorkCoverSA and Employers Mutual Ltd In 2011, WorkCoverSA and Employers Mutual Ltd commenced a revision of their respective complaint handling procedures. This revision led to WorkCoverSA issuing a Memorandum of Agreement with EML in January 2012. The agreement expressed a commitment to the newly drafted WorkCoverSA Complaint Handling Manual. A copy of the Memorandum of Agreement and Complaint Handling Manual was given to me for review. I subsequently advised WorkCoverSA that I was satisfied that the Manual provides for an effective process for managing complaints by WorkCoverSA and EML. Self-insured Employers The Office completed a review of the internal complaint handling processes of all private self-insured employers and all crown agencies that provide a workers’ compensation claims management service in the 2009/10 year. It is notable that the volume of complaints about self-insured employers received by my Office has been stable over all 4 years of operation. This suggests that the complaint handling processes followed by self-insured employers have been effective in resolving the less serious complaints so that my office has not had to deal with them. Even so, as foreshadowed in my previous annual report, I will undertake another review of all self-insured employer internal complaint handling processes in the 2012/13 year.


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Appendix Part One General Enquiries 2011/2012

Monthly General Enquiries

65

82 8881

6860

51

72 6856

88

64

125 125133

123132

93 93

153 149

121

172

121

Jul '11 Aug '11 Sep '11 Oct '11 Nov '11 Dec '11 Jan '12 Feb '12 Mar '12 Apr '12 May '12 Jun '12

EML Enquiries Total Enquiries

Office Expenditure 2011/2012

Salaries and Oncosts $ 497,945

Motor Vehicles and FBT $ 23,363

Supplies and Services $ 119,040

Depreciation and Amortisation -

Total $ 640,348


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Appendix Part Two

Complaint Resolution Process


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Appendix Part Two

Complaint Investigations Pursuant to Section 99D(1)(b) of the Act

Recommendations issued during the period 1 July 2011 to 30 September 2012

8 July 2011 – Income Maintenance > Not paid / delays – EML Complaint: The worker was owed back pay after her weekly payments were reinstated following the WorkCover Ombudsman’s review of EML’s section 36 decision, but the worker was not being given sufficient information to be able to check that the calculation of her back pay was correct. The WorkCover Ombudsman recommended that: 1. WorkCoverSA amend page 56, Chapter 9 of the Injury and Case Management

Manual to include a clear policy statement under the heading of ‘Curam, back pay and interest payment processing’ stating that, “when finalising back pay payments, the claims agent must provide to the worker or their representative documents that demonstrate how the worker’s back pay was calculated, how the interest component (if applicable) was calculated and how the tax payable was calculated”.

20 July 2011 – Communication > Behaviour / Conduct of case manager – EML Complaint: The worker complained that there had been an unreasonable delay by the case manager in investigating his claim. The WorkCover Ombudsman recommended that: 1. Employers Mutual issue an instruction to case managers reminding them of the

need to comply with Chapter 5 of the WorkCover SA Injury and Case Management Manual by advising workers verbally and in writing: the decision to defer the determination; the reasons for the deferral; details of any medical or other appointments arranged for the worker; and the right to apply to the Tribunal for an expedited determination on the

grounds there has been an undue delay in the determination process. 12 August 2011 – Rehabilitation > Compliance with s58B – SA Health Complaint: Although the worker had capacity to work from home, the employer had failed over many months of her making requests to offer her suitable duties The WorkCover Ombudsman recommended that: 1. SA Health commence compliance with section 58B of the Act by consulting with

the worker and her treating doctor to establish a Rehabilitation and Return to Work Plan by 19 August 2011 so that the worker can commence suitable employment at home without any further delay.


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26 August 2011 – Redemption > No offer – EML / WorkCoverSA Complaint: The worker’s psychologist attended a case conference for the injured worker in January 2011 where she was informed that it is WorkCoverSA’s policy not to consider any applications for redemption even though self-insurers continue to do so. The WorkCover Ombudsman recommended that: 1. WorkCoverSA abandon its blanket ban on redemption of weekly payments;

and 2. WorkCoverSA develop and implement a redemption policy (for inclusion in

Chapter 9 of the WorkCover SA Injury and Case Management Manual) in accordance with Recommendation 56 of the Clayton Walsh report of December 2007 and section 42 of the Act that gives proper, genuine and realistic consideration to the merits of a worker’s application for redemption of weekly payments and/or medical expenses.

29 September 2011 – Communication > Response not timely - EML Complaint: The worker had been upset about the manner in which the independent medical examiner had conducted the examination of her, but the worker was gaining no response to the letters she had sent to her case manager about it and the case manager was failing to respond to her requests for reimbursement of medical and travel costs. The WorkCover Ombudsman recommended that: 1. The General Manager of EML prepare and send a letter to the worker

acknowledging EML’s shortcomings in the management of her claim and apologise for: • Failing to acknowledge or respond to the worker’s letter of 2 December

2010 within 5 business days; • Failing to acknowledge or respond to the worker’s letter of 30 March 2011

within 5 business days; • Failing to reimburse the worker for all medical and travel costs within 14

days; • Failing to respond to the worker’s phone messages within one business

day; • Failing to provide the worker with an Independent Medical Examinations

Fact Sheet as required by Chapter 6 of the Injury and Case Management Manual;

• Failing to contact the worker to discuss the doctor’s report after it had been received and reviewed by EML; and

• Failing to obtain and provide the worker with a copy of the recordings made by the doctor in a timely manner.

2. WorkCoverSA amend its Independent Medical Examinations Fact Sheet to include information advising workers that the independent medical examiner may choose to make audio and video recordings of the examination if consent is given by the worker and information about how a worker may seek to obtain a copy of the recordings for their records.


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14 March 2012 - Income Maintenance > Back Pay - EML Complaint: EML delayed payment of back pay entitlements following consent orders in the Tribunal resulting in the worker incurring significant legal costs which could have been avoided had EML acted expeditiously. The WorkCover Ombudsman recommended that: 1. EML pay to Palios, Meegan & Nicholson Lawyers the sum of $441.21 for legal

costs incurred as a result of EML miscalculating and delaying payment of back pay to the worker.

23 May 2012 - Communication > Conduct of Staff Member - WorkCoverSA Complaint: 1. In about June 2011, the complainant purchased a business from a private

owner and employed some of the employees employed by the previous owner. One of the employees not offered employment by the complainant made a claim for compensation.

2. Subsequently, the complainant was contacted on several occasions by staff of WorkCoverSA, EML and De Poi Consultancy insisting that arrangements be made for the injured worker to undertake suitable duties at the complainant’s business.

3. WorkCoverSA’s staff contacted the complainant and advised that if it did not provide suitable duties to the injured worker the complainant’s exemption under section 28D of the Act could be in jeopardy.

The WorkCover Ombudsman recommended that: 1. The staff of the WorkCoverSA Return to Work Inspectorate be instructed about

the differences between the operation of WorkCoverSA’s Section 67 determination and the obligation existing under Section 58B of the Act.

2. The staff of the WorkCoverSA Return to Work Inspectorate be required to advise EML about these differences and to discuss how this issue may best be communicated to employers and rehabilitation providers.

8 June 2012 - Communication > Lack of Information/ Conduct of Staff Member - EML Complaint: A senior EML staff member (a) attempted to have the worker’s work placement cease even though it had been approved by the case manager (b) refused to approve funding for the work placement under the RISE scheme without proper grounds, and (c) conducted herself in a bullying and intimidating way. EML failed to advise the worker directly that RISE funding had been rejected and failed to properly explain why it had been rejected. The WorkCover Ombudsman recommended that: 1. The General Manager of EML prepare and send a letter to the worker apologising for:

(a) the staff member’s unnecessary interference with and disruption of a work placement that was working well;

(b) firstly, formally rejecting RISE and then taking another four months to conduct a review and approve RISE; and


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(c) the staff member refusing to communicate with the worker and provide a valid explanation for objecting to her work placement and also directing the Case Manager to not answer the worker’s questions, thereby causing her frustration and concern.

2. EML review its record keeping procedures and ensure all case managers retain all emails and other documentation where relevant to the management of a claim.

Review Conducted Pursuant to Section 99D(1)(a) of the Act Recommendations issued during the period

1 July 2011 to 30 September 2012 24 April 2012 - WorkCoverSA’s Self-insured Employer Evaluation Process The WorkCover Ombudsman recommended that WorkCoverSA: 1. Revise the performance standards and Natural Consequences Model in the Code

of Conduct for Self-insured Employers to: a. incorporate a combination of system requirements and set targets for

reducing work injuries and claims costs and for improving rehabilitation and return to work outcomes;

b. require periods of renewal of self-insurance to be set by reference to a self-insured employer’s performance against targets for reducing work injuries and claims costs and for improving rehabilitation and return to work outcomes as well as system requirements;

c. reflect the importance of achieving good outcomes in OHSW and injury management by allowing self-insured employers to qualify for a 3 year renewal period if they meet OHSW and injury management targets despite not conforming to all system requirements.

2. Amend section 3.2 of the Evaluation Practice Manual to provide self-insured employers with the option of either having the evaluator’s findings reviewed by another WorkCoverSA evaluator or paying for the evaluator’s findings to be reviewed by an external auditor selected by the self-insured employer from a panel of auditors previously approved by WorkCoverSA.

Documents

Annual Report 2011/2012 - REG SA