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.