Know someone who has been injured at work and ended up on compo screaming about the abuse they have had to endure? Did they get a ‘fair go’?
It’s easy for us to dismiss these outcries from injured workers’ in the workers compensation scheme, many of whom are injured teachers, nurses, and emergency services workers until you consider the Cassandra Culture.
Cassandra, one of the most tragic characters in classical Greek Mythology, was given the gift of prophecy along with the curse that she would never be believed.
Silence and harm can create a Cassandra Culture – an environment in which speaking up is belittled and warnings go unheeded. Especially when speaking out entails drawing attention to unpleasant outcomes, as was the case for Cassandra in her prediction of war, it’s easy for others not to listen or believe.
We now know that low levels of psychological safety can create a culture of silence and harm. Workers Compensation has exhibited all these signs for far too long and until recently they were largely hidden, unearthed by a social movement of injured workers joining the confronting dots for the sector.
Betrayal Trauma
The sector has been rife with what is known as Betrayal Trauma.
Betrayal trauma encapsulates the trauma that occurs inside a trusted relationship or institution.
Betrayal Trauma Theory (BTT) was first introduced by Freyd (1994). BTT “provides a conceptual framework for understanding the unique impact of traumas perpetrated by trusted and depended-on people and institutions (betrayal traumas) on posttraumatic functioning” (Gómez, Smith, Gobin, Tang, & Freyd, 2016, p. 529).
A culture of silence is thus not only one that inhibits speaking up but one in which people fail to listen thoughtfully to those who speak up – especially when bringing unpleasant news.
Institutional betrayal can be rectified when organizations practice institutional courage.
In New South Wales two advocacy groups, the Gender Injury Discrimination In Insurance (GIDII) and, the Injured Workers Network who are associated with Unions NSW are both calling for radical reforms putting an end to the cruel and abusive practices of the scheme.
They are if you like the canaries in the coal mine and have been signalling for some time the abuse of injured workers goes way beyond what we know.
No one wants to think of the fact that people injured, unable to defend themselves harmed further than their injury in a system but that is exactly what has been happening.
The message: how the injured are treated when seriously hurt at work is everyone’s business and a cultural shift is required in our interactions with anyone who is or has been on workers’ compensation. The stigma needs to be addressed.
Whilst legislators and administrators of the scheme continue to debate are workers’ compensation schemes around the nation fit for purpose, increasingly it is injured workers coming forward talking to the abuse they are forced to withstand in the various schemes that is giving rise to a level of social discomfort.
There is much concentration on reform yes, but what are we going to do about the injured we have already harmed since the 2012 ‘reforms’ that undid the scheme?
Most injured workers’ describe workers compensation as being the worst experience of their lives even greater than the actual workplace injury itself.
Obviously sustainability must continue to be the focus in what is a $60 billion industry nationwide that is bleeding in each state.
Increases in mental health claims and, science is now also informing of us how these mental health injuries are occurring and is compounding the issue, forcing us to rethink our approach to psychological injuries more broadly.
That said, the workers compensation sector ‘helping’ an injured person hopefully to return to work is complex. Is it actually helpful to the outcomes required? There are regulators, scheme agents (insurers) for the nominal insurer (icare), medico legal investigations, doctors, return to work providers, lawyers all circling an injured person at their most vulnerable and making a quid out of their misery.
Imagine trying to navigate and communicate with such complexity when cognitive impairment is almost certain due to injury, pain and/or psychological harm.
Most of us simply do not know about this. We assume you get injured and get help which means the required medical help and some assistance with wages.
Understandably, employers who pay for this social insurance are up in arms about the compulsory premiums they are required to pay to the government who administers the scheme in NSW when we now know from the iCare scandal that started with a revealed Four Corners/SMH expose in 2020 labelled the sector ‘immoral and unethical’. We later learnt that Icare was lavishing itself with bonus’, overseas junkets, jobs for partners, an Imaginarium for staff to think of ideas the list goes on.
That should be enough in itself to turn the tides but more was to come with the SMH masthead uncovering that iCare had underpaid 52,000 injured workers tens of millions of dollars in one of the biggest underpayment scandals in the country.
Underneath this surface of self-indulgence and poor governance there were thousands of injured people, many abused because the system was lavishing on itself. Where are they now?
We know that of the 3000 injured workers who lost their weekly workers compensation benefits over Christmas 2017/2018, 375 injured workers were potentially at risk of self harm over the previous year. There were 13 cases of actual self harm. Of the 3448 who had lost their weekly payments since Christmas 2017, six had died. At that time the scheme was $2billion in surplus.
in 2021 that surplus turned into a $1.5 billion deficit as Icare, driven by a jump in the number and value of claims pushed total liabilities to $22 billion compared to total assets of $21 billion.
These results came at the end of a turbulent two years for the iCare which was created in 2015 by then NSW Treasurer, Dominic Perrottet to replace the state’s troubled WorkCover authority after it racked up debts of $4 billion. Workcover was broken into three agencies ICare (the nominal insurer), SIRA (the regulator) and Safework NSW.
The pattern is obvious – sustainability and policy decisions have not improved the situation rather gone backwards with a scheme now in total disrepair due to years of neglect and interference rather than care for the injured front and centre.
Need To Protect Women
Alarmingly, to fix this mess also requires considerable Law Reform which can be slow. Some has already been instigated but of concern at present Scheme Agents do not at law owe a duty of good faith to the injured.
The Case law of Garcia V CGU Workers Compensation Pty Ltd is cited often in any proceedings.
In July 2006, District Court Judge Goldring delivered a judgment that caused the insurance industry concern. In Garcia v CGU Workers Compensation Pty Ltd (unreported, NSW D Ct, 14 July 2006) it was held that the insurers had breached a tortious duty of good faith it owed to the respondent by stopping the respondent's weekly workers' compensation payments. It was held that this duty of good faith, a novel tort, existed independently of the legislative workers' compensation scheme. As expected, the decision was appealed and in CGU Workers Compensation Pty Ltd v Garcia [2007] NSWCA 193 (10 August 2007) the New South Wales Court of Appeal rejected the argument that the insurer owed a duty of good faith to the respondent as a worker entitled to compensation under the statutory scheme. An excellent review of that decision below.
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Recently a self represented litigant who alleges she was sexually assaulted at work, deemed a workplace injury by the Personal Injury Commission had this case law reinforced yet again in the Supreme Court of NSW.
Similarly it also emerged that the insurer does not at law have an obligation to follow the claims management guidelines of regulators.
Until the law develops and legislators address these loop holes regulation is nice to have but will it stop the poor behaviours that we regularly see on our television screens such as A Current Affair recently?
As in the example cited above and although I am not a lawyer, there is something fundamentally wrong when it takes six years for an insurer to accept a claim for an alleged sexual assault at work and not once take a statement from the injured woman yet persisted in denying the claim. The language used by the insurer in denying the claim further compounded to the psychological distress of the woman when she was told by the insurer that the’ alleged perpetrator’s personality was such that he would not do such a thing’.
In a scheme that did not even acknowledge women until the 1970’s workers’ compensation gender equity somehow seems to have been left out of the reforms necessary.
The writer has supported hundreds of women, all citing abuse at the hands of the scheme. Most report that the scheme does not take into consideration that gender is a key determinant of health, influencing how women and gender diverse people experience health, illness, injury and health care.
There is an ongoing need to strengthen gendered approaches to the management of worker’s compensation claims particularly around psychological claims where gender often impacts workplace bullying and harassment allegations.
Access To Medical Treatment Through A Gender Lens
Strengthening approaches to injury prevention and applying a gender equity lens to prevention of workplace injuries, injury management and return to work programs, including access to timely healthcare and medical treatment is key to achieving health equity.
There is historical evidence in the NSW Workers' Compensation Scheme but more than likely acrss the other states too that going back to the 80's there was a tendency of the medical profession to delegitimatise some workers' injuries (for exanple RSI) or some classes of workers (notably migrants and women) by the application of ill defined labels like compensation neurosis' created major additional stressors for injured workers. To ameliorate these problems, common law access was severely retricted in the 1987 legislation. (Kenny, Dianna, Occupational Rehabilitation in NSW 1995, p. 21)
We would argue that in 2023 the scheme is beset by entrenched misogyny and sexism with injured women, many of whom have been the targets of workplace harassment are regularly labelled by case workers as 'hysterical' for seeking further abuse of them to cease once in the compo system. The abuse moves to a structural phase overlaid with chronic economic abuse and poor empathy skills that discourages healing.
According to The Gendered Framework for Action on Prevention and Healthcare there are 7 structural factors that contribute to gender inequity and it provides a focus for the issues we are trying to address within workers compensation at GIDII.
Considering these factors should be the basis for the development of gender equitable policies, strategies and action plans across the scheme:
1. Strengthening research, evidence and information
2. Addressing structural and intersecting barriers to universal access – particularly economic barriers
3. Eliminating gendered discrimination in health care
4. Rebalancing care, work and health
5. Evolving models of gender-responsive prevention and health care
6. Addressing the gendered nature of violence and its health impacts
7. Enabling agency
Applying the above gendered framework for action and, prevention and healthcare needs requires a shift to occur to support the individual agency of women injured at work requiring medical and wages support to return to health and work.
Abuse Of Women
In 2023, Australia’s national gender pay gap dropped to 13.3%. Women earn, on average, 87 cents for every $1 earned by a man. Now apply that understanding to workers’ compensation where injured workers in NSW earn up to 95% of their pre-injury earning weeks 0-13 and decrease to 80% weeks 14 – 130 with no capacity for work. It gets complicated from there as injured workers may have some capacity and try to return to work with payment incentives to do so.
Couple this financial disadvantage of being an injured woman in the system that is compounded by untherapeutic treatments and ongoing abuse and you have trauma on top of trauma with no end in sight to a healing culture.
We know of several cases where women have been forced to hold up photos of themselves naked as part of rehabilitation programs, others have been required to invite unknown male neighbours into their homes to assist change bed linen when living alone, another was told at an Independent Medical Examination to try another sex position when reporting ongoing difficulties in intimate sexual participation and yet another was encouraged to become a telephone sex worker as part of return to work initiative. There is nothing wrong in anyone choosing whatever profession they wish, that is an individual right but it another to bodily and psychologically shame women as part of poor claims management and a medical model that is designed to find fault rather than drive equality.
Cultures of Bullying Injured Women
Whilst at the moment there is a great deal of discussion within Parliament and the workers’ compensation sector itself about reform and improving claims management, what is to be done about the women’s lives this scheme has already intentionally harmed?
These poor behaviours by leaders, claims managers, and administrators of the scheme form part of what is accepted as a bullying and harassment culture levelled at vulnerable people. Of all genders.
I would argue bullying of the injured is systemic in workers compensation driven by antiquated legislation that encourages poor behaviours and a culture of looking the other way by regulators with victim blaming common place.
Workplace bullying is the denigrating of a person’s character through gossip, manipulation, gaslighting, sabotage, exclusion, and ostracization in an attempt to revoke their belonging at work, in the community, and more tragically, at times, themselves (Suskind 2023).
For injured women already vulnerable to abuse in their lives (2 in 5 women (39%) have experienced violence since the age of 15) to then be bullied and harassed by claims managers and regulators for complaining about untherapeutic treatment requires immediate action.
No Complaints Management
Alarmingly, it is now known, that until early September of 2023 iCare did not have an integrated complaints mechanism across the entire scheme. That’s eight years since iCare was formed. This means women screaming for assistance may have been mis identified as serial complainants when in fact they were being hurt and wanted the harm to cease. Legitimate complaints.
This also raises the question is the scheme as a whole providing psychologically safe environments for the very people they are meant to support, the injured? What should psychological safety look like in this sector for injured workers?
Kathie Melocco is the Convenor of Gender Injury Discrimination In Insurance known as GIDII along with Abbey Wilkinson and Ballina Gee. They will be on tour across the nation in 2024 talking to workplaces about what workplace bullying and harassment in reality actually looks like, beyond the regulations and how workplaces can build cultures of care for all employees. It starts with you. Reach out to us at to book to speak in 2024
Full disclosure: The writer’s own experiences with the workers’ compensation scheme in NSW led to iCare identifying they did not have an integrated complaints process across the scheme and she was issued with a 15 page Customers Advocate report detailing structural and systemic harassment & abuse and, a personal apology from the CEO of iCare, Richard Harding.
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