The definition of disability we use is ‘any limitation, restriction or impairment which restricts everyday activities and has lasted or is likely to last for at least six months’.
Many people who are injured in the workplace do not regard themselves as having a disability. But the reality is, if you take longer than six months to recover from injury, you have an acquired disability, regardless of whether you are claiming workers compensation or not.
For the purposes of a workers compensation claim though, the definition of disability is linked to a lump sum payout for permanent impairment. This presents a problem. There’s a huge industry around ‘rehabilitation’ after a workplace injury. Thousands and thousands are spent on returning injured employees to work, with the objective of reinstating pre-injury capability and duties, and reducing the cost of an individual’s medical bills and income support. The objective of ‘rehabilitation’ is to return an individual to permanent health, and eventually remove the income support and liability for medical bills. And that can take years.
Insurance companies operate on the basis of income – they don’t make a profit from premiums if people continue to make long term claims for income support and medical bills. The objective is to return a worker to pre-injury status as fast as possible. Initially, at least, this feels like support.
However, in a claim that goes past the six month point – as many do – there is much more pressure on the individual to meet the insurers objectives – not always suiting their individual needs.
An injured worker, under the medical model of disability – as we’ve mentioned in blogs in the past - is considered a ‘success’ in their rehabilitation program , if returned to work without any reasonable adjustment or flexible working conditions. The employee must ‘heal’ entirely.
That’s not always going to happen. For many people, a longer period of time is required – which is not something insurance companies prefer, as it means forking out for medical treatment longer and incurring more and more costs over time.
When is a workplace injury a disability?
Here’s a radical thought. If we consider a person who is injured on the job as a person with a disability after six months – under the Australian Bureau of Statistics definition – then the way we treat that employee in the workplace must change.
Rather than pressure on the employee to perform the same duties with the same conditions of service as pre-injury, employers and insurers can accept that post six months, an injured worker should have permanent access to the conditions and reasonable adjustments on the job that a person with a disability may request in order to perform equally with their colleagues and compared to their pre-injury performance.
If rehabilitation providers and employers accept that if an injured employee is not returned to pre-injury duties within six months, a process should be put in place to treat the injury as a disability for the purposes of reasonable adjustment, access to flexible working conditions and job re-design, then the pressure to ‘heal’ the injury is reduced, and the stress around losing accessible working conditions is eased – ensuring that stress about future employment is minimised, and ensuring that employers must consider flexible working conditions as a permanent measure.
The pressure to ‘heal’
In any workers’ compensation case, pressure to return to pre-injury duties with pre-injury conditions is a very heavy burden on an injured employee, and a person with an injury can feel ‘blamed’ for not ‘healing’ their injury sooner. The psychological stress associated with this point in the process is extreme, and non-compensable – but if the psychological pressure is reduced, better outcomes for injured workers are more assured.
Another unacknowledged problem, particularly in the case of our Australian Defence Force personnel injured while serving is the time it takes for an initial claim to be processed – during which time a person may be out of work and relying on Centrelink for an income while trying to pay for medical bills and support a family. It can take months for a claim to be processed, and during that time, support is not forthcoming.
By putting in place an interim support system, particularly for our ex-ADF personnel, which does not admit liability for insurance purposes but offers support to recover and return to a work environment with flexible working conditions, such as home based work, results only work environments and adaptive technology, and ensuring permanent access to these conditions, injured workers at the six month point will be reassured that they are supported to heal, adapt, and progress their lives.
Why aren’t we doing this already?
The simple fact in compensation and injuries on the job – particularly mental health conditions or in Department of Veterans Affairs claims – is that if a person is treated as having a disability after six months, there is a legal precedent to pay compensation for permanent impairment.
Until the legal precedent for permanent impairment is changed to allow the treatment of workers injured on the job as having a disability after the six month point, employers must treat the employee as having a work related injury under the compensation system, and the focus is on returning a worker to pre-injury duties or capability, no matter the psychological stress this causes.
Insurers are desperate to minimise the cost of claims. Workers’ are desperate for support and medical bill payment and reimbursement for the cost of time off work. The system has pressure on it that is purely financial, and for that reason, most cases are approached, eventually, as a cost per benefit analysis. The model is driven by money, not care or empathy. Part of the pain of any workers’ compensation process is the cold reality of being a ‘cost’ or a ‘burden’, and facing hostile medico legal practitioners who it can seem, are only interested in accepting a consultant’s fee for reporting to an insurer that you are a malingerer.
For anyone who has had to claim workers’ compensation for an injury, or apply for support from the Department of Veteran’s Affairs, it can be a harrowing and highly personalised targeted process which does not acknowledge the individual, only the cost of the potential medical bills and income support.
Separate the medico-legal process and compensation part of the claim from the support to return to a work environment or income support, and there is potential to reduce the stress on the injured worker, whether civilian or military, and allow them the freedom to build confidence, find suitable work and be assessed on the basis of their reasonable adjustment and accessibility needs on a permanent basis as a person with a disability and the stress is reduced leading to better injury outcomes and better support on a personal level, with conditions of service for any employer that enable them to work comfortably and safely at pre-injury levels, but with altered work conditions which include all possible reasonable adjustments and conditions.
Flexible working and results only work environments
Flexible working conditions – including home based work, part time work, a gradual return to full time hours – and a results only work environment can be enormously helpful to a person with an acquired disability. For example, a person who has post-traumatic stress may benefit from home based work and a results only work environment, allowing them to work at their own pace to achieve work projects and targets at a time of day which suits them. This may not be a nine to five proposition, if that person has insomnia as a symptom, they may find themselves working at 3am simply because their Circadian Rhythm is reversed, and asleep at 3pm. The performance is better, as cognition is actually better at 3am rather than 3pm, and better work results will be achieved.
Our recent submissions, for example, into the ACT Government Insecure Work Inquiry and the ACT Government Inquiry into Disability Employment, were written at these times over a week or so including weekends, by our Media Liaison and Communications Manager who has flexible working conditions and a results only work environment.
A results only work environment encourages self pacing and delivery of work within a set time, no matter what time of day or night, or what day of the week the work is done.
If all injured workers are reclassified as people with an acquired disability after the six month point, and given access to flexible work and results only work environments, and if they are properly supported to return to work from the point at which they lodge a workers compensation claim or a DVA claim, I suspect the outcomes would improve for the insurers, and the individual claimant.
Last week, I was privileged to attend a panel discussion on disability employment hosted by the University of Canberra’s Institute for Governance and Policy Analysis as part of the Parliamentary Triangle Seminar Series.
The discussion centred on the ‘tiers’ of the NDIS, and the need for a ‘jobs plan’ from the Federal Government.
But, a huge percentage of Australians living with a disability are not eligible for support under the NDIS. The majority of them are living in poverty, and in the demoralising and depressing reality of attempting to find work as a person with disability. Or they are being supported financially by their family, suffering from episodic illness or ‘invisible’ disability. Some have given up on the chance of ever having a career or using their qualifications – a hopeless and helpless situation which increases the likelihood of mental health issues such as depression.
The suggestions raised by the panel discussion on how to move forward on disability employment were closely focussed on ‘supported employment’.
Supported employment is a necessary and valuable strategy used by the not-for-profit sector to find employment for people with disability. At the end of the day, the government will pay a not-for-profit a considerable sum to place a person with disability in ‘supported employment’, which means the employer is paid to take the person on as an employee, and the not-for-profit organisation provides training to the employer and their staff on disability in the workplace, and mentoring for the person employed. I am not criticising the supported employment model, it is a valuable and necessary process for those people with disability who need the support.
But what about people who cannot, and do not, access supported employment?
Generally, they are highly skilled, having gained their academic qualifications, and then seeking work, finding no opening available. Often they return to studying, and become highly qualified, perpetual students with bright minds and a great eagerness to enter the workforce. And yet, the unemployment rate for people with disability in Australia is running at a fairly constant 45.7 per cent. Studies have shown university graduates with disability take longer to gain full-time work than other graduates.
The panel discussion raised the pertinent point that employers hold an ‘expectation of underperformance’ when it comes to employees with disability. Flexible working options for people with disability are also frowned on as too easily ‘rorted’. In the current employment climate, any person with disability given employment will need to put in 150 per cent effort and work twice as hard as non-disabled employees to gain credibility and prove they are not underperforming because of their disability. Busting the stereotype demands an enormous amount of dedication and twice the effort.
I was somewhat disappointed that the discussions at the seminar did not include people with disability taking their financial futures into their own hands, running their own companies, or using home-based work as a genuine career option.
People with disability, I would argue, have the same right as any other Australian to expect that they can have a career, and use their qualifications, and earn a living. But that’s not our reality. As Stella Young said at the launch of Enabled Employment in September 2014, “nobody with two degrees wants to work in a ‘sheltered workshop’ doing photocopying.” Australia ranks 21 out of 27 in the OECD for disability employment participation, prompting the development and implementation of the NDIS.
In ‘The New Leviathan: A National Disability Insurance Scheme’ by Andrew Baker, he notes ‘that a substantial number of people of working age with disability will miss out on funded supports because their disability is likely to be assessed as not severe enough to warrant NDIS-funded support. This group will likely believe they should receive funded supports, but in reality will not.’
Unfortunately, the NDIS is not the cure-all for people with disability that the general public thinks it is, and in terms of disability employment – it relies heavily on supported employment from not-for-profit organisations, with no mention of private or public sector involvement or dedication to the employment of people with disability who do not qualify for NDIS support.
For the majority of people with disability in Australia, there is no option but to rely on the government for an income, and to live below the poverty line. The barriers to employment for people with disability include access, reluctance by employers to embrace flexible working arrangements, and the stereotypical expectation that an employee with disability will automatically underperform.
Flexibility for people with disability in employment is the key to raising the disability employment participation rate. Private sector employers with open minds are embracing the idea of telework for people with disability, while both state and federal governments lag behind with ever decreasing disability employment statistics in the public service.
And, it is time for people with disability to demand the right to work, and to use their qualifications and skills in their chosen field of study. While we remain silent and continue to rely on pensions and social security payments, we are disempowered and lost in the dark reality of stereotypes and myths about employing people with disability.
So how do we solve the problem?
We need to reassess how we employ people with disability. Employing a skilled worker who happens to have a disability does not necessarily mean spending a great deal of money adapting a workplace and training staff and management in how to ‘cope’ with a person who has a disability. Neither does it mean an increase in insurance premiums or excessive sick leave. Studies have proven that people with disability take less time off, make less workers compensation claims, and are just as productive in comparison to non-disabled people.
Flexible working arrangements, such as teleworking, provide a viable and effective means to ensure people with skills and qualifications can participate in the workforce. I urge all employers – public, private and community sectors - to re-think their disability employment strategies – and their flexible working options – to ensure that people with disability who do not access supported employment can expect the same career opportunities as everyone else.
I welcome your feedback, please leave me a comment below.
My blog post on 10 Facts about Disability Employment you won't Believe has been getting a lot of traffic, so I thought I would go into a bit more detail on these and other facts and what Australia is doing to try and change these shocking statistics.
In 2008, the United Nations launched the Convention on the Rights of Persons with Disabilities. Designed to ensure that people with disabilities were considered equal in the eyes of the law in each participating nation, it covers a multitude of things, including rights regarding employment. Many countries still have low participation rates in the employment sector and in some ways Australia is falling behind many of its developed world counterparts. The country is taking steps to address this imbalance but first we need to look at the current state of affairs.
In recent years, two separate studies have demonstrated low workforce participation for people with a disability. The first recorded 54.3% participation and around 84% for people without a disability. A separate study demonstrated an even greater disparity with the figures at 39.8% and 79.4%.
In 2009, following the worst period of the economic crisis, the national average unemployment rate rose to 5.1%. However, amongst people with disabilities that figure was 7.9%. The situation for people with mental illness is even worse: participation rate in 2003 was just 28.2% and the unemployment rate in the same year was 19.5%, nearly four times that of the general population.
The Organisation for Economic Co-operation and Development (OECD), an organisation dedicated to promoting democracy and the market economy, listed 29 countries for employment rates of people with disability. Australia was ranked 21st, this was the lowest of all developed nations. In 2011, Pricewaterhouse Coopers listed quality of life for people with disability in 27 countries. Unfortunately, Australia came 27th in that list too.
When it comes to poverty, the global average of people with disability living at or below the poverty line is 22%. Australia’s is over double that at 45%. It’s hardly surprising when around two thirds of people living with a disability is earning a weekly wage under $320 when the equivalent amongst the general population is one third. Unfortunately, in Australia, people with disabilities are more likely than any other group to be living day to day in poverty.
So What is Australia Doing about This?
Shocked by some of the findings above, the national government took steps to improve the situation and adhere to disability employment laws as well as international conventions on human rights. The National Disability Strategy 2010-2020 aims to significantly improve a number of factors related to disability employment including awareness, to allow the individual control over their working lives and to actively encourage businesses to more actively consider people with disabilities’ applications.
Part of this strategy included the establishment of the National Disability Insurance Scheme, a plan to permit people with disability and mental illness to control their own employability and employment. It replaces a number of grants and schemes for individuals for greater workplace participation. It includes (but is not limited to) training and care provisions for those who are ineligible for Job Services Australia and Disability Employment Services, assistive technology and a number of other services.
By 2020, Australia expects to be amongst the highest rated nations for workforce participation of people with disabilities and mental illness. We will be watching and waiting to see when the NDIS turns its thoughts to employment which is the logical and very talked about next step. We, like I'm sure you do, have a lot of suggestions on how this may work in the future.