Kate Rasmussen | December 18, 2016

BROKEN, BULLIED & BLUE A REPORT ON THE OBSTACLES FACED BY POLICE AND

OTHERS WHO SUSTAIN PSYCHOLOGICAL INJURIES, AND HOW

THE WORKERS COMPENSATION SYSTEM IS FAILING THEM

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Contents

Purpose and Scope ...................................................................................................................................... 2

Background .................................................................................................................................................... 2

Reasonable Management Action .............................................................................................................. 8

The Claims Assessors ............................................................................................................................... 13

Unacceptable Delays in Claims Processing ........................................................................................... 16

How the Queensland Police Service responds ...................................................................................... 19

Suicide ......................................................................................................................................................... 26

A Nation-wide Problem .............................................................................................................................. 31

Recommendations ...................................................................................................................................... 34

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Purpose and Scope This report has been compiled for the purpose of demonstrating the unfair and inadequate claims assessment practices of WorkCover Queensland (the Insurer) and The Workers Compensation Regulator (the Regulator – formally Q-Comp) with regards to psychological injury claims. The information contained within this report provides an insight into the obstacles faced by injured police in having their compensation claims approved, at a time when they are at their most vulnerable. Evidence shows that inexperienced and underqualified claims assessors are manipulating and abusing the ‘reasonable management action’ exclusion clause set out in Section 32 (5) of the Workers Compensation and Rehabilitation Act (2003) Queensland (The Act). This action in particular is unfairly denying compensation to those who have sustained workplace injuries whilst serving their community. The report focuses predominantly on the impact these practices are having on Queensland police officers, who are also faced with lack of organisational support and bullying tactics, although this problem also extends to other Australian States, Territories and organisations. These issues affect anyone who may lodge a claim for compensation for a psychological workplace injury.

Background Although WorkCover Queensland and the Workers’ Compensation Regulator are two separate Queensland Government organisations, both report to the Minister for Employment and Industrial Relations, as seen in Figure 1 (below).

Source; https://www.worksafe.qld.gov.au/about-us/workcover-queensland/organisational-structure

Due to the very nature of policing, police officers, like all emergency services workers are at risk of experiencing some form of psychological injury during their careers. It has become clear that anyone who sustains a psychological injury in the workplace is greatly disadvantaged when it comes to the task of having a claim for workers compensation approved by WorkCover. This is especially the case where an injury is caused by the actions (or inactions) of management.

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The claims process and overall system is full of obstacles for a person suffering from a psychological injury. From statutory claim limitation periods, legislative exemptions, having to attend multiple medical assessments, and decisions being made by non-qualified claims assessors, the claims process can be extremely overwhelming in a system where support is between minimal and non-existent. Workers have 6 months to lodge a claim from the date that they first attended the doctor and were diagnosed with a work related injury. Most are not aware of the limitation period and whilst battling a psychological injury many find that they miss the opportunity to lodge a claim. More often than not, their psychological injury claim will be excluded and rejected by the Insurer (see figure 3) in any case. If the claim is rejected by the Insurer, the worker may apply to the Regulator to have the decision reviewed. Again, there is a limitation period of 3 months to lodge a review,1 however only 4% of decisions made by the insurer are reviewed, with 60% of those decisions being upheld by the Regulator.2 If a worker is not satisfied with the decision of the Regulator, they have 20 business days after the review decision to lodge an Appeal to the Queensland Industrial Relations Commission (QIRC),3 which is also a daunting process. This could explain why only 0.3% of Regulator decisions are then appealed4 via the QIRC. This provides evidence that whilst some workers will review the insurer’s decision, most are generally not pursuing their claim any further once it has been rejected by WorkCover, and even less are appealing the decision made by the Regulator. The review and appeal processes are significantly stressful and overwhelming for a person suffering from a psychological injury. Many struggle to make or receive phone calls, complete paperwork or even get out of bed. Another reason why some officers are not pursuing their claims is

that treating practitioners have been known to tell officers to stop pursuing their WorkCover Claims due to the impact it has on the officer’s health and recovery. Officers have been told to let their claim go and move on in order to be able to start to heal psychologically, which results in the QPS winning the ill-gotten battle. The result is that at face value it looks like the complaint was vexatious or weak, but this is very far from the truth. Most officers can’t afford the costly expense of legal representation, and ‘no win-no fee’ law firms generally only take on a case (for a common law claim or total and permanent disability claim) after the workers’ compensation claim is accepted. Proceeding to the QIRC can prove to be an expensive and stressful venture. The onus is always on the worker to prove their case to the Insurer, Regulator and QIRC, unless a decision is reviewed by the employer who then has the onus to prove that the claim is not one for acceptance. As a result, many workers simply ‘give up’ and subsequently miss out on being compensated for their injuries.

1 Workers Compensation and Rehabilitation Act (2003) Qld, s 542. 2 Q-Comp 2014-15 Statistics Report, p.4. 3 Workers Compensation and Rehabilitation Act (2003) Qld, s 550. 4 Q-Comp 2014-15 Statistics Report, p.4.

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Further evidence provided within the Q-Comp 2014 Statistics Report confirm that 67.8% of appeals lodged with the QIRC in 2014-15 were finalised before reaching the Industrial Relations Commission. The reason being that 82.1% of those cases were withdrawn by the appellant,5 which statistically speaking, is the worker in most cases.6 This shows that the majority of those who do manage to find the fortitude to challenge these decision makers to Appeal stage, are still not following through to court. In 2013 an inquiry was conducted by the Finance and Administration Parliamentary Committee into the Queensland Workers Compensation Scheme. The committee was concerned that; ‘claimants with psychological injuries are in the most vulnerable position when it comes to dealing with the requirements of making a claim and managing the consequences of having a claim rejected…and given the nature of psychological claims, that a significant number of lodgements not reviewed may be genuine cases where claimants are unable to “manage” pursuing the claim further’.7

This has certainly been the case with many psychological injury claims submitted by police. Many simply don’t have the emotional strength to lodge paperwork, make phone calls, or review WorkCover’s unreasonable decisions. As a result, they subsequently miss out on any compensation. This has severe financial and psychological repercussions for the worker. It appears that the Insurer and Regulator may be relying upon the vulnerability of workers when rejecting their psychological injury claims. The rejection or withdrawal of a claim for workers compensation can have a devastating impact on the worker. Without an approved workers compensation claim, the worker is not covered for medical expenses, travel expenses or wages, and they lose their right to a Common Law (negligence) claim in cases where the employer has been negligent. They are denied compensation for past and future loss of income, and this can sometimes push a person to breaking point due to feeling failed by the system that should be supporting them. A compounding issue to their health and welfare is that if the cost is not covered by WorkCover, the officer has to find the cost, with medical visits and medication regimens extending over many months and years. This places financial hardship on the officer, thus further compounding stressors to them and their family when they are least positioned to deal with it. The high percentage of rejected psychological injury claims in comparison to physical injury claims demonstrates a disturbing trend in the current workers’ compensation system. Statistics obtained during an inquiry into the Queensland workers’ compensation scheme in 2013 identified that that ‘…claims for psychological and psychiatric injuries have a higher chance of rejection’.8

5 Q-Comp 2014-15 Statistics Report. p.49. 6 Q-Comp 2014-15 Statistics Report. p.45. 7 Finance and Administration Committee, Parliament of Queensland, Inquiry in to the Operation of Queensland’s Workers Compensation Scheme; Report No 28 (2013) p.85. 8 Q-Comp 2011/12 Statistics Report.

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The Association of Self Insured Employers of Queensland (ASIEQ) advised a Parliamentary Committee that rejection rates for psychological claims are in excess of fifty per cent compared to physical injuries which have a rejection rate of five per cent’.9 The high rejection rate of psychological injury claims is not a new or recent issue. A Victorian study conducted back in 2008 showed that ‘around 40% of all stress-related claims are initially rejected, compared to a rejection rate of 15% for claims overall’. 10 There is also evidence to support that it is predominantly the worker who is aggrieved by the decisions of WorkCover. 84.8% of review applications lodged to the Regulator were lodged by workers, with only 14.4% by employers, and the remaining 0.7% of applications were lodged by employers having a policy decision reviewed.11 Those statistics are indicative of a significantly one-sided approach to claims assessments within the current workers compensation system, with most decisions being made in favour of the employer. There are a number of factors contributing to these statistics, including the ‘reasonable management action’ exclusion clause set out in the Queensland workers compensation legislation.12 Amendments made to the Workers Compensation and Rehabilitation Act (2003) in 2013 have now made it even harder for workers to prove the causal nexus between their employment and their psychological injury. Prior to 2013, a worker had to show that employment was ‘a significant contributing factor’ to the injury. That has now been amended, imposing a higher burden of proof namely that the employment must be ‘the major significant contributing factor’ to the injury.13 Another issue is that workers are being denied natural justice at the hands of the decision makers. Natural justice (or procedural fairness) is concerned with ensuring that a fair decision is reached by an objective and impartial decision maker. It requires that two rules be observed;

1. The hearing rule, which states that a person or body deciding a particular matter must give the affected person the opportunity to present their case and have that material considered before any decision is made, and;

2. The rule against bias, which states that a decision maker should have no personal interest in the matter to be decided, have no bias as to the outcome and act in good faith throughout the process.14

There have been cases where decisions have been made without allowing the affected person to respond to information provided by the employer,15 thus denying the worker their rights to procedural fairness. Those claims would have a better chance of acceptance if a claims representative was to simply request or clarify certain information from the worker rather than simply excluding the claim.

9 Finance and Administration Committee, Parliament of Queensland, Inquiry in to the Operation of Queensland’s Workers Compensation Scheme; Report No 28 (2013), p.78. 10 VWA, Stressing the Point: A Study into What Causes Stress in a Budget Sector Workplace, and How it Can Be Controlled, Melbourne, 2006. There was a slight decrease (1%) from January 2005 to November 2007. Data obtained from the VWA, as at January 2008. 11 Q-Comp 2014-15 Statistics Report, P.45. 12 Workers Compensation and Rehabilitation Act (2003) Qld, s 32 (5). 13 Workers Compensation and Rehabilitation Act (2003) Qld, s 32 (1). 14 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 489 (Gleeson CJ). 15 WorkCover claim numbers S10CD857044 & S13CR197864.

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Given that a worker has only three chances at having the claim accepted (application, review and appeal), the often unjustified rejection of their initial claim means they have already lost one of those chances. Where bias is concerned, it is important to understand the underlying rationale which is that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.”16 The actions of decision makers need to be able to withstand scrutiny and uphold public confidence. Statistics presented within this report will show that decision making practices are generally one-sided in favour of the employer. This is not surprising when it is the employer who pays for the insurance that WorkCover provides. WorkCover also provide employers with a solicitor to give ongoing advice and assistance when a common law claim is made against the employer,17 which confirms which ‘side’ the insurer is on. At least one staff member from WorkCover has been seconded to work within the QPS Injury Management Section.18

The ‘Independent Medical Examination’ (IME) process also appears flawed, with regular reports from workers that the Insurer, Regulator and Employer send them to certain Doctors who are likely to provide a report that is unfavourable to the worker. Even the Medical Assessment Tribunal (MAT) panel of ‘independent’ Doctors work within the office of the Regulator and are often the same doctors used regularly. This does everything but give the impression of impartiality. Justice cannot possibly be seen to be done when the insurer is also the decision maker, reaching decisions that are statistically in favour of the employer, whilst also being paid for by the employer. It is factors such as these competing interests which give a perception of bias and injustice at the expense of the worker. It is becoming increasingly common for officers attending IME appointments to be made to submit a drug and alcohol screening. The officers attending these appointments are extremely vulnerable, and attending an IME is stressful enough. But when a drug and alcohol screen is ‘sprung’ upon them and they are made to submit a urine sample whilst being watched by a pathology collection staff member, it is degrading and humiliating. Officers feel that they are being treated like the drug offenders they arrest, who are required to submit to drug and alcohol testing as part of their probation or parole conditions.

16 R v Sussex Justices; Ex Parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ. 17 https://www.worksafe.qld.gov.au/rehab-and-claims/injuries-at-work/common-law-claims/common-law-claims-information-for-employers. 18 Claims Supervisor Janna Stephens from WorkCover was seconded to the Queensland Police Service where her position involved supervising the Work Health and Safety Officer that was overseeing the rehabilitation of an officer whose claim had previously been rejected by Stephens. 19 Safety Culture, ‘QLD: Police Claim Record Compensation for Stress’, OHS News, 8 December 2010.

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The legality and way these tests are conducted is currently under examination. Officers being told by IME doctors that they must perform the test, however such a test is in no way connected to their psychological injury. Officers are not advised if they have a right to refuse the test, and as such, they do the test under the belief that it is compulsory. If it is NOT compulsory, then officers need to be made aware of this so that they are not having their human rights violated. If the Queensland Police Service are requesting that the tests be conducted, and officers are not informed about whether they are under direction to perform the test, or if they have a right to refuse, then this could also raise some legal implications for the Service. The Queensland Police Service are bound by the provisions of Part 5A of the Police Service Administration Act (1990) regarding targeted drug and alcohol tests. For an officer who is not a police applicant or a covert operative or has not been involved in a critical incident, the grounds for the test must be based upon a reasonable suspicion that the officer is using targeted substances.20 Therefore, in the absence of the reasonable suspicion test being satisfied, the Queensland Police Service have no legal right to require an officer to submit to the test. Of course they may request that the officer submits the test, however they must also advise that the officer can refuse. This is not occurring, and is making the IME process even more distressing for officers.

20 See Part 5A Police Service Administration Act, 1990, (Qld).

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Reasonable Management Action For a workers compensation claim to be approved, the worker must prove that they are a ‘worker’,21 and that they have sustained an ‘injury’, and that the injury has arisen out of their employment. Section 32 (1) (a) & (b) of the Workers Compensation and Rehabilitation Act (2003) Queensland provides the definition of ‘injury’ as being;

(1) An injury is personal injury arising out of, or in the course of, employment if— (a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or

(b) for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

The wording of the definition in itself demonstrates the higher burden of proof required for psychological injuries as opposed to physical injuries, and that is the first obstacle that workers face. The second (and most difficult) obstacle is Section 32 (5) of the Act which provides the exclusion clause that relates to ‘reasonable management action’;

(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances— (a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment; (b) the worker’s expectation or perception of reasonable management action being taken against the worker; Examples of actions that may be reasonable management actions taken in a reasonable way— • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment.

The clause is intended to exclude compensation claims that are based on legitimate and reasonable actions by management, due to the fact that managers must be able to make reasonable managerial, administrative and disciplinary decisions without the consequence of a workers compensation claim being unjustifiably lodged. There can be no doubt that employers must be afforded some legislative protection from becoming roped into a workers compensation claim on the basis of a lawful and reasonable decision. Disappointingly though, the clause is being excessively relied upon to exclude legitimate psychological injury claims even when management action is not ‘reasonable’ by ordinary standards. During the 2014-15 period, Q-Comp reported 2,663 claims were lodged for psychological and psychiatric injuries (4.7% of total claims).22 Of those claims, 65.4% were rejected, with only 34.6% accepted.23 Q-Comp further reported that 96.8% of the rejected psychological and psychiatric claims were rejected on the basis of ‘reasonable management action’.24

21 Workers Compensation and Rehabilitation Act (2003) Qld, s 11. 22 Q-Comp 2014-15 Statistics Report. P.18. 23 Ibid. 24 Ibid.

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During the 2013-14 period, 95.9% of rejected psychological injury claims were rejected on that basis,25 and in the 2011-12 period 97.8% of rejected psychological injury claims were also rejected on the same grounds.26 This is an exceptionally high number of rejections excluded by S.32 (5) of the Act and it’s hardly convincing that the management action in almost 100% of rejected psychological injury claims during the past 5 years was actually reasonable. In 2013 an inquiry was conducted by the Finance and Administration Parliamentary Committee into the Queensland Workers Compensation Scheme. The Committee noted that under the exclusionary provisions of Section 32 (5) of the Act, “…the claim can only be accepted if the injury arose out of or in the course of unreasonable management action”.27 The Committee also reported that there is “evidence that ‘reasonable management action’ has been used to disqualify legitimate claims”.28 There have been a number of Queensland cases where a worker has been subjected to workplace bullying and harassment, however the Insurer and/or Regulator have deemed the actions of management to be ‘reasonable’ (see case examples of this report). In fact, the wording of the legislation almost invites an employer to take advantage of this exclusionary clause and use various forms of ‘management action’ if they wish to bully or harass a worker. The Tribunal in Re Inglis and Comcare Q95/335 (27 August 1997) stated

that ‘reasonable' includes…..the additional consideration of whether the disciplinary action was attended by circumstances of fairness'.29 Statistics show that proving that management action is unreasonable will be an almost impossible task, as what is ‘reasonable’ with regards to management action is very much open to interpretation. Case precedence has determined that even if the actions of management are not ideal, they may still be referred to as mere ‘blemishes’,30 which allows the exclusion clause to still be activated in order to reject a claim. Despite the legal acceptance of ‘blemishes’ with regards to management action, once a “number of events which may otherwise individually be considered as blemishes are repetitive, there is a stronger indication of a need for a global assessment”.31 In Delaney v Q-Comp32 President Hall stated that when determining if management action was reasonable or unreasonable, each of the causative stressors and the events leading to them should not be looked at in isolation, but rather a global assessment regarding the reasonableness of management’s action should be undertaken to determine whether management action overall was reasonable.

25 Q-Comp 2013-14 Statistics Report. P.19. 26 Q-Comp 2011-12 Statistics Report. P.18. 27 Finance and Administration Committee, Parliament of Queensland, Inquiry in to the Operation of Queensland’s Workers Compensation Scheme; Report No 28 (2013). 28 Ibid. 29 Australian Safety and Compensation Council, Australian Workers Compensation Law and its Application. (2006) p.31. Available at http://www.safeworkaustralia.gov.au . 30 Delaney v Q-comp Review Unit [2005] QIC 11 (2 March 2005); 178 QGIG 197. 31 Ibid. 32 Delaney v Q-comp Review Unit [2005] QIC 11 (2 March 2005); 178 QGIG 197.

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To determine whether management action is ‘reasonable’ requires the application of the ‘reasonable person test, namely that the actions of management must be reasonable by;

“the standards and expectations of a ‘reasonable person’ – one who stands as a disinterested on-looker and seeks to assess whether the conduct in issue was reasonable, having regard to community standards and expectations as well as what might be regarded as ‘fair and proper’. To exclude a worker from acceptance of her application for compensation, the management action must be “reasonable in all the circumstances of the case …”33

Similar exclusion clauses have also been discussed in other states. At paragraph 2.313 of the Accident Compensation Act (Vic) Review; Final Report, (2008), Hanks, P stated; “In my view a requirement that management action must have been ‘reasonable’, before liability for the consequent psychiatric injury is excluded, should continue to provide protection to workers from employers’ harsh or unjust management decisions”. It is obvious that in our current system, workers are not being protected from such management decisions at all. In 2011, a submission was made by a former WorkCover employee to the Queensland Government in relation to the Independent Review of the Queensland Police Complaints, Discipline and Misconduct System (See Appendix 2).34 The submission contained some very concerning information that supports what many Queensland Police employees have been claiming for some time;

33 WorkCover Queensland v Kehl [2002] QIC 23; 170 QGIG; Ivey v WorkCover Queensland [1999] QIC 65; QGIG 392. 34 Member of the Public, Submission No 4 to Queensland Government, Independent Review of the Queensland Police Complaints, Discipline and Misconduct System. Available at http://www.premiers.qld.gov.au/publications/categories/reviews/assets/member-of-the-public4.pdf.

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The submission went on to include;

35 A statement published by SafeWork Australia (2015) identified that police officers are the 4th highest occupation likely to experience workplace bullying and/or harassment, based on figures from 2010-2013.36 The same report identified that Public Order and Safety Services is the industry with the 3rd highest rate of bullying and/or harassment.37 Those findings excluded Western Australian research, and therefore the actual figures are likely to be even more substantial. With workplace bullying and harassment so prevalent in our workplaces today, it is difficult to understand why more compensation claims aren’t accepted to reflect the incidents of unreasonable management action. The Queensland Police Service is regularly making headlines for allegations of bullying and harassment, and there is a widespread belief that there is a bullying culture within the organisation. This is particularly the case where psychological injuries are concerned. In November 2016, a survey was conducted amongst current and former Queensland police officers regarding psychological injuries, suicidal ideations and organisational culture. The survey was completed by 375 respondents over a three-day period. The results provided fairly conclusive evidence that there is perceived bullying culture within the Queensland Police Service. 266 respondents (71%) stated that they believed there is a bullying culture, compared to 109 (29%) who disagreed.38 122 (33%) of respondents said they had personally experienced bullying by management, 55 (15%) had experienced bullying by colleagues, and 85 (23%) had experienced bullying by both management and colleagues.39 110 (29%) of respondents also said that they knew of someone who had been bullied within the Queensland Police Service and 96 (26%) stated they had not experienced bullying at all.40

35 Member of the Public, Submission No 4 to Queensland Government, Independent Review of the Queensland Police Complaints, Discipline and Misconduct System. Available at http://www.premiers.qld.gov.au/publications/categories/reviews/assets/member-of-the-public4.pdf. 36 Safe Work Australia, ‘Psychosocial Health and Safety and Bullying in Australian Workplaces; Indicators from Accepted Workers’ Compensation Claims’. Annual Statement, 2nd Edition, 2015. 37 Ibid. 38 Survey completed by Justice4workers Qld, November 2016, Question 10. 39 Ibid, Question 9. 40 Ibid.

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Mick Barnes, General Secretary of the Queensland Police Union stated “I regularly read and hear denials from QPS management that bullying does not exist within the QPS. They only need to search their own records to find the evidence.”41 In 2015, an inquiry was conducted into alleged bullying, harassment, misconduct and other matters in the Gold Coast Police District, yet senior police are believed to be concealing the results after “dozens of officers came forward to complain of alleged behaviour including…victimising gay and Aboriginal workmates”.42 Only the Executive Summary of the report has been made publically available, with the QPS denying there is a bullying culture. Not only are the Insurer and Regulator justifying the unacceptable and unreasonable actions of management in order to reject claims, but they are also manipulating information provided by workers so that they may activate the exclusion clause. That very issue was discussed by Queensland Police Union President Ian Leavers who has stated; “…..the process to have a WorkCover claim accepted for a psychological injury can, on occasions, prove difficult. WorkCover will reject an application for a psychological injury if it determines that it arose from ‘reasonable management action’. All too often we have seen legitimate claims rejected when a member completes their WorkCover application and makes a passing reference to management action, even in circumstances where the involvement of management had no bearing on the injury suffered. Some of our members have even been encouraged by WorkCover case managers to list multiple factors which may have contributed to the medical condition. In essence, the more factors listed by the member, the more scope the WorkCover case manager has to find aspects of management action to reject the claim…..”43

Police are meticulous when it comes to documenting information. When providing information to doctors and to WorkCover about what has occurred to them during the course of their symptoms and diagnosis of their injury, providing too much information is usually going to be detrimental to their claim. This was highlighted by Mr. W. Cull in the case of Q-Comp v Melville (QMC) [2008] at p.17; “An injured worker who sustains a psychological injury should not be concerned when consulting a medical practitioner to classify his or her stressors as significant contributors to the injury. An injured worker will simply report what occurred. The fact that an injured worker reports transactions, dealings, incidents, or events leading up to or subsequent to sustaining a psychological injury to a medical practitioner does not compel a finding that all of these stressors significantly contributed to the injury. After considering all of the evidence, the Commission may find that on balance some of the claimed stressors did not contribute significantly to the injury, or that other stressors not specifically nominated by the injured worker did make such a contribution”.

41 Queensland Police Union Journal, November 2009, p.3. 42 Stolz, G. Report into Gold Coast cop culture buried, Courier Mail, 9 April 2016. 43 Leavers, I. Queensland Police Union Journal, October 2012, Pp. 2-3. Available at http://www.qpu.asn.au/files/secure/yyjnefUbZWCLaT8q6JUvYKBT8MerCr8OtKRxHMJYaGo5pNHF6cdqRFqO3lo-yPis6gpCPjxOuiZSSaXaiAGqkD0C96dctg1oh3bcup10Ilm-AsiKfM-q8DApZgCRN15EcMGoJPo.pdf.

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Magistrate Cull went on to determine that; “Before s.32 (5) can be considered it is necessary for a finding to be made that a stressor said to be reasonable management action was a significant contributor to the injury in question. Where a series of transactions, incidents, dealings or events (stressors) involving the worker in the workplace occur, s.32 (5) can have no effect unless one or more of these stressors significantly contributed to the injury. An injury cannot be withdrawn from s.32 (1) because a stressor nominated by an injured worker which is found not to have significantly contributed to an injury, is reasonable management action taken in a reasonable way. If the nominated stressor is not a significant contributor, it cannot be relied on to bring the injury within s.32 (1), and in such case

s.32 (5) can have no effect with respect to consideration of the nominated stressor”.44 The language used in the legislation is vague, for example 'arising out of' and 'reasonable'.

This gives considerable flexibility to decision-makers in reaching a conclusion.45 It is an accepted principle that Workers’ Compensation legislation is remedial legislation which is to be construed beneficially,46 and interpretation which will best achieve the purpose of an Act is to be preferred to any other interpretation.47 The manner in which information is manipulated, misinterpreted and inaccurately applied for the benefit of the employer is a good indicator that the information is being assessed by persons not qualified to perform such a task.

The Claims Assessors When a claim is lodged with WorkCover, the claim is assigned to a Claims Representative to be determined.48 According to the Australian Safety and Compensation Council, “workers' compensation claims for psychological injuries…are complex and demand a high level of medical and legislative knowledge on the part of the decision makers involved in determining whether entitlements to workers' compensation exist”.49 Given the level of power given to these decision makers and the impact their decisions have upon a person’s mental health and livelihood, workers expect that the decisions are made by appropriately qualified claims assessors.

“Appropriately qualified” is defined in the Acts Interpretation Act 1954 as “…having the qualifications, experience or standing appropriate to perform the function…”50 Unfortunately this is not the case with many of the WorkCover Queensland Employees, and it is the workers who are reliant upon the acceptance of their claims who are suffering as a result. Several of the Claims Representatives from WorkCover have online LinkedIn profiles which show their qualifications and experience.

44 Q-Comp v Melville (QMC) [2008] at p.17. 45 Pearce, D. Australian Workers Compensation Law and its Application; Psychological Injury Claims (2006). 46 WorkCover Queensland v Howgego [2003] QIC 68. 47 Acts Interpretation Act 1954 (Qld) Section 14A – Use of Extrinsic Material – WorkCover Queensland

Intention of the Act. 48 https://www.worksafe.qld.gov.au/rehab-and-claims/injuries-at-work/what-happens-after-a-claim-is-made. 49 Australian Safety and Compensation Council, Australian Workers Compensation Law and its Application, (2006) p.5. 50 Acts Interpretation Act 1954 (Qld), Schedule 1.

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The available information on LinkedIn profiles located was concerning, and provided evidence of a lack of investigative or other relevant experience. Some examples include; 1. SK – Claims Representative at WorkCover Queensland.51

• Finished High School in 2010.

• Team leader at ‘Yum Brands’ (Pizza Hut/KFC).

• Online Team Leader at Coles (Online Shopping).

• Table Games Dealer at Treasury Casino.

• Employed at WorkCover 2014 – Current.

• Studied at University of Technology 2011-2016. 2. PL – Claims Representative at WorkCover Queensland.52

• In-Room Dining Attendant at Sofitel Luxury Hotels.

• Senior Operator at Vitalcall (clerical duties).

• Employed at WorkCover 2011 – current.

• Qualifications - Cert III (Trade) Commercial Cookery + Diploma of Hospitality Management.

3. KA – Claims Representative at WorkCover Queensland.53

• Fleet Maintenance at Swire Cold Storage.

• Employed at WorkCover since 2014. 4. DS – Customer Service Manager at WorkCover Queensland.54

• Dancer at Qld Ballet

• Pilates Instructor

• Employed at WorkCover since 2005. Now overseeing and approving the decisions made by Claims Representatives.

• Qualifications - Bachelor of Science, Psychology and a Master of Business Administration, Cert IV Polestar Pilates Matwork Instruction.

5. CP – Claims Representative at WorkCover Queensland.55

• Finished High School in 2007.

• Personal Assistant to Managing Director/Accounts Payable/Receivable/Sales and Invoicing Officer at Natural Vitality Australia.

• Crewing and Travel Co-ordinator/Drilling Operations Administrator at Weatherford Drilling.

• Employed at WorkCover since 2015.

• Qualifications – Cert III Business Administration.

51 Available at LinkedIn profile SK. 52 Available at LinkedIn profile PL. 53 Available at LinkedIn profile KA. 54 Available at LinkedIn profile DS. 55 Available at LinkedIn profile CP.

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6. MC – Claims Representative at WorkCover Queensland.56

• Office Administrator and Property Manager at Harcourts.

• Property Management Supervisor at Frank Knight Gladstone.

• Team Leader/Business Development Manager at Harcourts.

• Employed at WorkCover since 2015. 7. AB – Claims Representative at WorkCover Queensland.57

• Assistant Manager at Hungry Jacks.

• Store Manager at Cotton On Group.

• Counter Manager/Beauty Therapist at Endota Day Spa.

• Internal Sales Representative at Solomon Security and Blinds.

• Installation and Service Co-ordinator at Solomon Security and Blinds.

• Employed at WorkCover since 2014. 8. TM – Claims Representative at WorkCover Queensland.58

• Credit Officer at BGW Group.

• Employed at WorkCover since 2014. 9. CG – Claims Officer at WorkCover Queensland.59

• Client Service Officer at SkillsTech Australia.

• Employed at WorkCover since 2012. During the 2013 Inquiry into the Operation of Queensland’s Workers Compensation Scheme, ‘one confidential submitter was concerned that decisions regarding what is reasonable management action are made by individuals at WorkCover and Q-COMP with no particular training, tertiary qualifications, experience or expertise in management theory and practice or its application in work environments which by their very nature are diverse, interactive and complex’.60 Another submitter stated that for psychological injuries, decisions are made by WorkCover claims assessors or Q-COMP review officers who are authorised to assess a complex and interactive dynamic such as whether the actions of particular people towards a particular employee in a particular context in a particular organisation with particular policies and procedures in a particular industry are ‘reasonable’ or not.61 The Queensland Teachers Union submitted that ‘…..WorkCover decision makers appear to receive little or inadequate training in the legislation’. Their decisions frequently do not reflect that the decision maker has considered each step in the process to make the decision. QTU considers that ‘well written, well-reasoned decisions would be more likely to be accepted by workers and not pursued to application for review or appeal stage’.62

56 Available at LinkedIn profile MC. 57 Available at LinkedIn profile AB. 58 Available at LinkedIn profile TM. 59 Available at LinkedIn profile CG. 60 Finance and Administration Committee, Parliament of Queensland, Inquiry in to the Operation of Queensland’s Workers Compensation Scheme; Report No 28 (2013) p.69. 61 Ibid. 62 Ibid.

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During a general conversation with a former WorkCover Lawyer in 2015, the Lawyer stated that ‘Claims Representatives are not qualified investigators’, and ‘they receive nothing more than a two week training course’ before being permitted to make major decisions with regards to a person’s eligibility for compensation. This is completely unacceptable when they have the responsibility for assessing claims that will potentially affect a person for the rest of their life.

Unacceptable Delays in Claims Processing

The claims process itself, including unacceptable delays, and rejection of a workers legitimate claim for compensation can significantly impact upon a workers health and ability to return to work. As Cotton, P (2008) reported; “……..There is now some recognition that claims administration processes can impact on return to work outcomes. For example, delays in claim acceptance determination can foster uncertainty and distress, as well as more adversarial interactions between a worker and insurer. Organisational justice research suggests that when these claims are finally determined, factors related to redress of perceived inequity and unfair treatment can contribute towards entrenching work disability”.63

Hanks, P (2008) also identified a link between the workers compensation process and adverse health outcomes when he stated that; “The process understandably leads to frustration for both employers and workers, creating disputes and causing delays in workers accessing medical and psychiatric treatment and weekly benefits. In many cases, the disputes and delays can lead to an exacerbation of the worker’s condition and deterioration of the relationship between the worker and the employer. The outcome can ultimately be a prolonged recovery period and a decrease in the worker’s prospects of return to work.64

Whilst Q-Comp report that the assessment of a psychological injury claim takes an average of 29.7 days,65 some claims are excessively and unreasonably delayed which causes an extreme amount of pressure to an already vulnerable worker. Symptoms are often exacerbated and workers are denied medical treatment and rehabilitation while the claim is being decided.

63 Cotton, P. ‘Psychological Injury in the Workplace,’ Australian Psychological Society (2008). Available at https://www.psychology.org.au/inpsych/psych_injury/. 64 Hanks, P. Accident Compensation Act Review; Final Report, (2008). 65 Q-Comp 2014-15 Statistics Report. P.18.

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Example 1: Queensland Police Officer lodged a claim for workers’ compensation in June 2014 for a psychological injury.66 The insurer did not make a decision until August 2014 whereby the claim was rejected. The Officer lodged a review to the Regulator within the statutory three-month timeframe, and the Regulator set the decision of the insurer aside and referred it back to WorkCover for further investigation. WorkCover had failed to make a decision 1.5years after the claim was lodged. The officer found the process too overwhelming and due to financial and psychological hardship the officer medically retired in October 2015. It is now December 2016 and the officer has still not received a response from WorkCover with regards to the acceptance or rejection of this claim. The officer paid for all their own medical expenses. Example 2: Queensland Police Officer lodged a claim for workers compensation in November 2014.67 The insurer did not make a decision until 9th February 2015 whereby they rejected the claim. The officer lodged a review with Q-Comp within the statutory three-month timeframe, and the matter was referred back to WorkCover for further investigation. It was not until 9th May 2016 that the Insurer again made the decision to reject the claim. An application to review the decision is in the process of being lodged with the Regulator again. Meanwhile, the officer is being denied medical treatment for a work related injury. Example 3: Queensland Police Officer lodged a claim for workers compensation on 25 March 2011.68 A decision was not made until 8 September 2011, whereby the claim was rejected. A review was lodged with the Regulator on 20th October 2011, and it took until 6th January 2012 for the Regulator to make a decision to reject the claim. The matter was appealed and finally approved at a compulsory conference held before the Queensland Industrial Relations Commission. The worker suffered suicidal thoughts and battled depression for over a year, whilst being unable to access much needed medical treatment. Despite the distressing effect a drawn out claims process has on a psychologically injured worker, the worker has no avenue for being compensated for these unnecessarily drawn out claims processes. It is also of great concern that the Insurer is exempt from any consequences for their actions. Section 32 (5) (c) of the Act states that a psychological injury is not compensable if it was caused by any action by the Regulator or an insurer in connection with the worker’s application for compensation. This therefore removes all accountability from the decision makers. A lack of accountability can only result in poor decision making processes, and this clause permits the Insurer to take as long as they want to determine a claim regardless of the impact it has upon a worker. The Insurer and Regulator should be required to make a decision within a reasonable time frame, and if they fail to do so there should be a deeming provision to rule in the favour of the worker. The legislation currently only places restrictions on the worker, who is at the mercy of these organisations.

66 WorkCover Claim number S13JQ157957. 67 WorkCover Claim number S13CR197864. 68 WorkCover claim number S10CD857044.

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Seven’s Sunday Night program aired a story that highlighted “rigorous and unfair delay tactics” employed by superannuation funds and insurers when receiving disability insurance claims from Police (NSW), and the unnecessary stress and anxiety inflicted upon a worker as a result.69 Sunday Night reported that genuine claims are frequently abandoned by those desperately needing support because of the unsurmountable hurdles created by insurance companies.70 Wil Barsby from Shine Lawyers stated that “hardworking Australian workers turn to their super funds and disability insurers in a time of utter desperation and need. It is unacceptable that their claims are processed in a way that many Australian courts have described as “incompetent” and “without good faith”. The courts have also often found that disability insurers will simply ‘cherry pick’ evidence to justify denying a claim”. 71

Also contributing to the delays are the repeated directions to attend various ‘independent’ medical examinations (IME’S). Workers can be sent to numerous specialists for the same condition, and can be directed to do so by WorkCover or their employer. Each time a worker is forced to go over the same information in order to ‘prove’ that they are suffering from an injury which causes more angst and distress. The most concerning aspect of this process is again the perception of another bias process. For example, a worker may have already submitted supportive reports from their team of treating practitioners, and perhaps even have a favourable ‘IME’ report, only to be sent elsewhere until an unfavorable report is received. The problem with this course of action is that a claim is supposed to be assessed on a ‘balance of probabilities’, that is that the likelihood that the worker has sustained a work related injury must be more probable than not. There have been occasions where a single report is relied upon to reject a claim, even when there are several others that support the claim being accepted. More weight appears to be given to the report of an IME doctor who has spent 30minutes with a worker, than the report of a treating specialist that has an in-depth knowledge of the worker’s condition.72 This process can cause further distress to a worker, and is another example of the battles an injured worker faces. Then if a worker medically retires and applies to access their Total and Permanent Disability (TPD) funds from their superannuation fund, the entire process starts again – more doctors and more fighting with an insurance company just to access some form of income to live off and support a family.

69 https://www.shine.com.au/blog/workplace-law/insurers-take-advantage-courageous/ 70 Ibid. 71 Ibid. 72 WorkCover Claim number S13CR197864.

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How the Queensland Police Service responds Workplace injury and rehabilitation for police and other emergency services in Queensland is now being managed by the Public Safety Business Agency (PSBA),73 although the QPS have proposed that all staff working under the PSBA will be transitioned back under the QPS by 1st July 2016. A QPS study found that 95 per cent of participants experienced a work-related traumatic incident at some time in their career (Rallings, 2000).74 Of this number, a small group is likely to develop a mental health problem including substance use disorders, depression and posttraumatic stress disorder (PTSD). The study identified that PTSD prevalence in the service is approximately eight per cent following work-related incidents. The quoted 8% who have been counted as suffering further trauma does not reflect the true percentage of officers seeking ongoing treatment for a work related psychological condition. It is common practice for officers, especially senior officers, to be receiving clandestine medical treatment, so as to avoid typecasting by colleagues, resulting in an environment of doubt surrounding that officer, generating ‘career- limiting’ exclusion from fairness in the relieving and promotional process by senior members. During the survey conducted by Justice4workers Qld in November 2016, 298 (79%) of respondents said that they wouldn’t feel comfortable advising supervisors if they sustained a stress related condition.75 Most comments related to that survey question expressed a fear of being targeted, medically retired and forced out of the service.76 Respondents were also asked if they felt that members of Queensland Police Service management were supportive of workers who sustain psychological injuries, and 291 (78%) answered ‘no’.77 Only 6% said they thought QPS management were supportive, with 17% being ‘unsure’.78 Comments made by QPS Far Northern Region QPUE Representative Marty Bristow, sum up the typical perception of how injured workers are treated;

“Rather than the current attitude of pushing someone until they break and then throwing

them away, there needs to be preventative measures put in place and the ability for people to repair and return to work. The sausage factory mentality—when someone is broken or damaged, throw them away—needs to stop now. This goes for management and members both: treat those who have gone through a rough time with respect and dignity, not rumours and innuendo”.79

73 http://www.psba.qld.gov.au/services/Pages/default.aspx 74 Cited by Cabrero, Jackson, Elliott, and Konstantinou (2014). Australian Psychological Society; InPsych Facilitating Psychological Wellbeing in a Policing Context. Available at https://www.psychology.org.au/inpsych/2014/december/cabrero/ 75 Ibid, Question 8. 76 Ibid. 77 Ibid, Question 6. 78 Ibid. 79 Bristow, M, Queensland Police Union Journal; December 2015, p.13.

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In the Justice4workers survey of November 2016, alarming figures were discovered regarding suicide ideations or attempts that are caused by a lack of management support. It is important to note that only 137 respondents out of 375 had been diagnosed with a psychological injury of some form.80 118 (31%) stated that they have considered suicide.81 The highest cause of suicidal thoughts was lack of organisational support (17%), closely followed by exposure to work related critical incidents (14%), personal matters (12%) and workplace bullying (11%).82 It was disturbing to see that 19 (5%) of the respondents had actually attempted suicide.83 Respondents were able to select multiple causal factors, which revealed that the leading cause of suicide attempts was lack of support by QPS management in 13 (3%) of those respondents.84 Other statistics on causative factors included; Personal matters – 8 respondents Workplace bullying – 8 respondents Lack of support from colleagues – 8 respondents Exposure to critical incidents - 6 respondents Internal investigation – 3 respondents Rejection of a workers’ compensation claim – 4 4respondents.85 In an article published in the Brisbane Times on May 9th 2016, QPUE Representative Phil Notaro stated "What hasn't been dealt with is systemic managerial corruption within the QPS. The systemic culture of bullying, intimidation and harassment by senior officers has been the direct downfall of many a good officer."86 During the 2011 Independent Investigation into the Queensland Police Complaints, Discipline and Misconduct System, a number of submissions were made by serving police that also demonstrate the culture of bullying, victimization and misconduct within the QPS (Appendix 3). Whilst the QPS have a psychological wellbeing model known as “Psychological First-Aid”, as well as Employee Assistance programs and internal support officers, this appears to be inadequate when it comes to the prevention, early intervention and rehabilitation of psychological injuries. This is particularly so when the QPS are failing to adhere to their own policies which has been experienced by many QPS employees.87 Many members state that they have rarely been referred to a Human Services Officer (HSO) or been contacted by one following many critical incidents that they have been involved in, despite policy stating that supervisors must refer officers to the HSO following their exposure to a critical incident.

80 Justice4workers Qld survey, November 2016, Question 2. 81 Ibid, Question 3. 82 Ibid. 83 Ibid. 84 Ibid. 85 Ibid, Question 4. 86 http://www.brisbanetimes.com.au/queensland/police-union-calls-for-probe-into-watchdogs-20160509-goprw2.html. 87 WorkCover Claim numbers S12AW45518, S12AW098075, S13CR197864, S10CD85704, S11AW923155 and S13JQ157957

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QPS policy does place some responsibility back on the employee to seek help ‘once they identify the need’, however there is no requirement as such for officers to self-refer after every critical or traumatic event. These policies have been put in place for supervisors to manage risks associated with the causal nexus between critical incidents and psychological injuries. Yet when failure to comply with policies is mentioned in information to WorkCover, it is still deemed to be ‘reasonable’.88 Of course there can be no guarantee that early referral will prevent a psychological injury in every instance, however if police supervisors are failing to comply with policies that have been implemented to manage identified risks, it’s hard to conclude that the organization is doing all that they can to support their workers. Policies are only as good as the level of organisational compliance that is maintained, and it seems that the policies that are there for the protection of workers are the ones least complied with.89 Most police will state that all they want is to be treated fairly following a workplace injury, rather than being subjected to unfair and unreasonable tactics that appear to make their return to work more difficult. In an article co-authored by a member of the QPS Employee Assistance Program, it was identified that ‘members have reported a significant reduction in symptomology when placed into a different policing role.’90 If this is the case, and it is known by those involved in policy development, then why isn’t every effort being made to accommodate the reasonable needs of a worker who is returning to work after sustaining a psychological injury? The lack of available modified or appropriate alternative work duties is also a well recognised factor contributing to the duration of work incapacity. Moreover, it is increasingly evident that poor leadership practices can increase work avoidance and thereby prolong periods of incapacity.91 It is important to note that a “failure to make reasonable adjustments for a worker with disability, including a worker with mental illness, may constitute direct or indirect discrimination”. If an employer refuses to make reasonable adjustments for a worker with disability and this has the effect that the person is treated less favourably than someone without disability. For example, not allowing someone with depression to work part-time where this arrangement has been sought as an adjustment for the worker’s mental illness may be direct discrimination.92 Even legal cases have discussed the fact that police officers are susceptible to stress and injuries, which an employer is obliged to reduce by ‘placing that employee in alternative duties and providing ongoing support’.93

88 Workers Compensation Claim numbers S10CD85704 and S11AW923155 89 Queensland Police Service Psychological Wellbeing Policy, Negative Workplace Behaviours Policy, Code of Conduct, and Complaint Management Policy (from claims made by 41 members of the Facebook support group). 90 Cabrero, et.al (2014). Australian Psychological Society; InPsych Facilitating Psychological Wellbeing in a Policing Context. Available at https://www.psychology.org.au/inpsych/2014/december/cabrero/ 91 Cotton, P. ‘Psychological Injury in the Workplace,’ Australian Psychological Society (2008). Available at https://www.psychology.org.au/inpsych/psych_injury/. 92 Human Rights Commission, 2010, P.33 93 State of New South Wales v. Seedsman (2000) and State of New South Wales v. Williamson (2005).

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Ceasing an injured officer’s pay is another tactic that features commonly amongst psychologically injured workers. The QPS Certified Agreement provides for officers to apply to access the sick leave bank,94 a pool of sick leave hours donated by members which may be applied for if a member has exhausted their own hours whilst on long term sick leave. Sick leave bank applications are heard before the Sick Leave Bank Committee. The QPUE Industrial Relations Officer sits in on these meetings, however often decisions are still made to cease an officer’s pay whilst they are on sick leave and suffering a psychological injury. From experience, it appears that if the QPS don’t support an officer accessing the sick leave bank, the officers’ pay may be ceased almost immediately and at times without warning and without justification. There can be absolutely no reasonable excuse for such a radical action when a person is genuinely ill, vulnerable and in a state of despair. Ceasing an officer’s income severely impacts upon the officer’s relationship with QPS supervisors, as well as exacerbating health symptoms and reducing the officer’s likelihood of returning to work. On top of fighting WorkCover, and/or the Regulator, fighting for legal representation from the QPUE, and fighting a bullying culture within the organisation, the officer then has to also fight to receive an income whilst on extended sick leave. It’s almost hard to fathom how anyone could cope with all of these challenges, but some officers have had to deal with all of these. In an article published in The Australian in 2010, a retired Queensland police officer stated that "The Queensland Police Service will do anything to help an officer if the blame for the injury can be attributed to something, or someone, outside, but if there is some responsibility to be taken because the cause of the injury was internal to the service, they do all within their power to evade their responsibilities."95 The officer then went on to say that "Since my injury I have had a number of police contact me and tell me how they were treated in a similar way to what I have been, and they were forced out, too.”96

Research has shown that helping employees learn stress coping techniques may only have short-term success—it is not a long-term solution (Ford 2004; and Noblet & LaMontagne 2006).97 The better option is to reduce the sources of workplace stress at an organisational level. This has been shown to have long-term benefits for the employees and the organisation as a whole.

94 Queensland Police Service Certified Agreement 2013, Appendix 3. 95 Koch, T. Injury puts focus on police duty of care. The Australian, 2 January 2010. 96 Ibid. 97 Cotton, P. ‘Psychological Injury in the Workplace,’ Australian Psychological Society (2008). Available at https://www.psychology.org.au/inpsych/psych_injury/.

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However the most comprehensive stress intervention is best done on three levels (Cox 2011; Ford 2004; Guthrie et al 2010; LaMontagne et al. 2010b; Noblet & LaMontagne 2006; Leka et al. 2003).98

• The ‘primary’ level is generally considered the most effective intervention and deals with the source of stressors in the workplace.

• The ‘secondary’ intervention provides control at the individual employee level.

• The ‘tertiary’ intervention aims to provide treatment to employees who have experienced a work-related mental stress injury.99

The causes of mental stress need to be constantly monitored and assessed through a cycle of continuous improvement. A good employer designs and manages work in a way that avoids common risk factors for stress and prevents foreseeable problems as much as possible (Cox 2011).100 The workers’ compensation literature indicates that a workplace culture that is supportive of injured workers and their graduated reintegration in the workplace, and where there is a positive relationship between workers and managers, is the most important factor in supporting return to work……101. In the 2014-15 year, a total of 74 Queensland Police Officers were medically retired, and

162 resigned.102 And after retirement officers are left to fend for themselves, still with no support and usually their WorkCover claims have been closed rendering them unable to claim for any further medical expenses related to their workplace injury. Officer’s retire with nothing more than having their holiday leave and long service leave balance paid out to them, and if they are eligible for a TPD benefit it usually takes up to 12 months of also having to fight against Q-Super for the approval of their claim. Evidence indicates that the most effective way to prevent full-blown posttraumatic stress disorder is by facilitating early access to high quality mental health treatment.103. The delays in the claims process and failure of the employer to support claims for psychological injuries in many cases means that workers are missing out on the facilitation of early treatment.

98 Cotton, P. ‘Psychological Injury in the Workplace,’ Australian Psychological Society (2008). Available at https://www.psychology.org.au/inpsych/psych_injury/. 99 Cotton, P. ‘Psychological Injury in the Workplace,’ Australian Psychological Society (2008). Available at https://www.psychology.org.au/inpsych/psych_injury/. 100 Cotton, P. ‘Psychological Injury in the Workplace,’ Australian Psychological Society (2008). Available at https://www.psychology.org.au/inpsych/psych_injury/. 101 Hanks, P. Accident Compensation Act Review; Final Report, (2008). http://www.compensationreview.vic.gov.au/__data/assets/pdf_file/0003/24663/Final-Report-ACA-Review.pdf. 102 Queensland Police Service; Annual Statistical Review 2014-15. P. 153. 103 Cotton, P. ‘Psychological Injury in the Workplace,’ Australian Psychological Society (2008). Available at

https://www.psychology.org.au/inpsych/psych_injury/.

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Amy Williams, the daughter of Detective Senior Constable Russell Sheehan who took his

own life in 2015 told ABC that "…we want to make sure that for future and current serving

police that there are adequate resources in place to help them when they need help”.104

Ms Williams has written to the Queensland Police Commissioner, Police Minister and

Opposition Police spokesman expressing concern about the lack of resources.105

The Australian Defence Force have extensive support services available to them upon medical retirement, through their Career Transition Assistance Scheme (CTAS). The scheme supports eligible personnel to be able to re-skill into other occupations through external study, training or work experience over a period of time leading up to retirement on medical grounds.106 This allows defence personnel to prepare for civilian life and transition into another field of employment. CTAS reduces the likelihood of unemployment following medical retirement, as well as reducing the need for medically retiring defence personnel to rely on government payments or TPD benefits. Services offered via CTAS include financial counselling, curriculum vitae counselling, job search strategies, stress management, as well as interview skills and preparation. The scheme permits approved absence from duty for career transition activities and also provides support to family members of persons discharging from the military on medical grounds. The QPS medical retirement process offers no such support. Officers attempting to return to the workplace on light duties are often placed into positions that are considered amongst the ranks to be ‘punitive’. Positions such as the Police Communications Room are often used to relocate officers who are under internal investigation, and as such there is a stigma attached to officers who are sent there after sustaining work-related injuries. Being moved into such a position results in officers being isolated from their workmates in an unfamiliar environment, and feeling as though they are being punished. Defence personnel are ‘honourably discharged’, whereas QPS officers who retire medically receive little or no contact from their superiors leading up to or following retirement, with no official recognition of their service and commitment to their community other than a Commissioner’s Certificate of Service that they receive in the mail. Officers are simply being kicked out the door with no income and no ongoing support after handing back their badge and uniform which essentially also strips them of their identity. This in itself is often a demoralising moment for officers who have spent years or even decades in a highly regarded profession that requires them to assume such an identity and maintain a high moral and ethical standing both on and off duty. There is no acknowledgement, no recognition, no support and no income for medically retiring police. The value of simple, genuine care and concern should not be underestimated when it comes to providing a supportive environment for psychologically injured workers.

104 Guest, A. Queensland Police: Family calls for more psychologists after detective took his own life. ABC, 24

Feb 2016. 105 Guest, A. Queensland Police: Family calls for more psychologists after detective took his own life. ABC, 24 Feb 2016. 106 http://clik.dva.gov.au/rehabilitation-library/4-adf-rehabilitation-program/44-interaction-ctas-goal-3-clients/441-career-transition-assistance-scheme-ctas.

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Appendix 3 contains a submission made by a former WorkCover employee to the Queensland Government in relation to the Independent Review of the Queensland Police Complaints, Discipline and Misconduct System.107

Some officers have also raised concerns about the President of the Queensland Police Union being on the WorkCover Queensland Board of Directors. This could make it difficult for Mr Leavers to take a tough stance against WorkCover Queensland on behalf of union members when there could be a perceived conflict of interest.

107 http://www.premiers.qld.gov.au/publications/categories/reviews/assets/member-of-the-public4.pdf

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Suicide With suicide research being a broad area to cover, only information relevant to the purpose and scope of this report will be included in this section. Research shows that there is often a causal nexus between managerial actions and suicide. This could be indicative of the lack of support provided to officers who are suffering from a psychological injury, and evidence of this has already been provided in this report. It is important to reiterate the findings of the survey conducted by Justice4workers Qld in November 2016. The results of the survey revealed that only 137 respondents out of 375 had been diagnosed with a psychological injury of some form.108 118 (31%) stated that they have considered suicide.109 The highest cause of suicidal thoughts was lack of organisational support (17%), closely followed by exposure to work related critical incidents (14%), personal matters (12%) and workplace bullying (11%).110 It was disturbing to see that 19 (5%) of the respondents had actually attempted suicide.111 Respondents were able to select multiple causal factors, which revealed that the leading cause of suicide attempts was lack of support by QPS management in 13 (3%) of those respondents.112 The exact number of police suicides has not been well documented and statistics have proven difficult to obtain. Violanti (2001) estimated that up to “17% of police suicides are misclassified due to the stigma, insurance, and protection of the officer’s reputation”.113 The issue of police suicide has been published in many news articles over the years. In 2008, the Courier Mail reported that a female Queensland police officer took her own life with her service pistol inside her workplace shortly after arriving for her shift.114 In the same article, the Courier Mail reported that in the 10 years prior to the incident, there were two other Queensland police officers took their own lives at work at Ipswich and Smithfield stations. The Courier Mail further identified that there had been approximately two Queensland police officer suicides per year during the decade prior to 2008, but that figure had jumped to six per year following the Fitzgerald Inquiry.115 The exact figures are believed to be even more concerning, according to a former Queensland Police psychologist Dr Timothy White. In 2011, Dr White told the Courier Mail that approximately two officers per year were taking their own lives, and that attempted suicides were at “alarming rates”.116

108 Justice4workers Qld survey, November 2016, Question 2. 109 Ibid, Question 3. 110 Ibid. 111 Ibid. 112 Ibid. 113 Stephen Barron (2010) Police officer suicide within the New South Wales Police Force from 1999 to 2008, Police Practice and Research, 11:4, 371-382, DOI: 10.1080/15614263.2010.496568. 114 Policewoman's suicide shocks workmates; Courier Mail, 23 April 2008. 115 Ibid. 116 Sandy, A. Police suicide risk scares psychologist; Courier Mail, 1 July 2011.

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In an article published on http://www.abc.net.au/news on 24th February 2016, former Queensland Police Detective Inspector Bruce Graydon stated that during his 30 year career, at least a dozen of his close colleagues had taken their lives. 117 Mr Graydon told the ABC that "Suicides within the general population are about 12 per 100,000…..In the police, its north of 18 per 100,000…The moment that they leave the police or they're retired medically unfit their death isn't recorded by the Coroner as a police-related suicide." 118 The real numbers are therefore expected to be much worse. More recently a Queensland Police Detective Sergeant took his own life in 2012,119 a Detective Inspector took his own life in 2014,120 and a Detective Senior Constable took his own life in 2015.121 In 2016 two serving Queensland police officers suicided,122 as well as a retired Senior Constable who was medically discharged from the Queensland Police Service in 2010.123 The author of this report has personal knowledge of three serious suicide attempts by serving Queensland police officers since August 2016.

On March 6 2014, ABC’s ‘The Drum’ posted an article titled “Our Shameful Silence on Police Suicide”.124 The author reported that the silence on police suicide and the treatment of officers who experience mental trauma ‘amounts to a national scandal’, and that ‘almost universally, police who fall sick with mental trauma are shunned by colleagues and isolated from any meaningful help from the police bureaucracy’.125 This statement couldn’t be closer to the truth. Another news article posted by the ABC in March 2014 reported that ‘too often, traumatised police officers are shunned, isolated and put under surveillance. They lose their careers, friendships and often their homes, marriages and children, and a growing number are taking their own lives’.126 In Victoria, police suicides have prompted the Commissioner Graham Ashton to order a mental health review which he hopes will lead to greater support for officers.127 Mr Ashton told ABC Radio that ‘police stress and suicides were a “worsening situation” in Victoria…I’m seeing a lot more police suicides than I ever used to.”128 In February 2016, The Guardian reported that three Victoria police members have killed themselves so far this year’.129

117 Guest, A. Queensland Police: Family calls for more psychologists after detective took his own life. ABC, 24 Feb 2016. 118 Ibid. 119 http://www.australianpolice.com.auIT. 120 http://www.australianpolice.com.auSD. 121 http://www.australianpolice.com.auRS. 122 http://www.australianpolice.com.auOI and Officer DF. 123 http://www.australianpolice.com.auMN. 124 Verity, W. Our shameful silence on police suicide. 6 March 2014. 125 Ibid. 126 Death in the line of duty, ABC, 2 March 2014. 127 Guest, A. Queensland Police: Family calls for more psychologists after detective took his own life. ABC, 24 Feb 2016. 128 Davey, M. Second Victoria police suicide in a week puts spotlight on officers' mental health 129 Ibid.

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Then there is the tragic story of NSW Police Officer Ashley Bryant who took his own life in December 2013.130 Before he died, he called 000 and said; 'I suffer post-traumatic stress disorder. I can no longer live with the trauma of it and I want this to go to the coroner. There needs to be more things put in place for what happens. For partners of those that suffer, because I suffer and so do the partners. And there has to be more done for them. Alright, I have no more to say.'131 Those chilling last words send a tragic message of the suffering experienced by police with PTSD. In an article posted on 23 February 2016, NSW Police were criticised by the husband of a female police officer who took her own life in 2013. ABC reported that; The coroner found that on the day before she died, she was sent to see a police medical officer, who concluded her earlier suicide attempt was not genuine and questioned whether she had PTSD. He recommended she be transferred to another police station without delay…….the assessment was "flawed" and contributed to the failure of process intended to protect her. On the day she died, she was called into a meeting to be told she was being transferred. She left the office in a distressed state, drove to a state forest and took her life.132

Former NSW Police Officer Karol Blackley also told the ABC about her lack of support from the NSW Police Force after she sustained a work-related psychological injury. Ms Blackley, who had also attempted to take her own life stated; 'They didn't care about me at all, not one iota…..it was astounding, disappointing, hurtful, gut-wrenching…..they couldn't give two hoots…..no-one from the police department contacts you when you are off sick……no-one contacts you when you are medically discharged and certainly no-one contacts you when you are not in the police [force] anymore.'133

On June 5 2015, News.com.au reported that one emergency services worker is taking their own life in Australia every six weeks.134 The Intentional Self-Harm Fact Sheet produced by the National Coronial Information System (NCIS), reports the statistics on suicides by emergency services personnel between 1st July 2000 and 31st of December 2012.135 Some of the key findings were;

• 110 fatalities involving emergency services personnel were identified.

• 62 cases involved police service members.

• 22 fatalities involved fire service members.

• 26 fatalities involved ambulance service members.

130 Death in the line of duty ABC, Sunday 2 March 2014. 131 Ibid. 132 Husband of policewoman who killed herself lashes out at police , ABC, 23 Feb 2016. 133 Death in the line of duty , ABC, 2 March 2014. 134 Kaubaridis,A. Every six weeks and emergency services worker in Australia commits suicide. News.com.au June 5 2015. 135 Intentional Self-Harm Fact Sheet: Emergency Services Personnel, (2014), p.2. Available at http://www.ncis.org.au/wp-content/uploads/2015/06/NCIS-FACT-SHEET_ISH-EMERGENCY-SERVICES-PERSONNEL_RELEASE.pdf.

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Figure 1 (below) shows a breakdown of suicides by State, and emergency services organization. New South Wales has the highest rate of police suicides, closely followed by Queensland.

Figure 2. Intentional Self-Harm Fatalities (Emergency Service Personnel), by Jurisdiction

Whilst the above diagram reflects suicides over a 9 year period from 1999 – 2008, a study conducted by Forensic Psychologist Dr Stephen Barron identified 41 suicides by NSW police officers occurring between 2000 and 2012.136 In the 41 cases, the study found; (1) preferred method of suicide – firearms in 43% of reviewed suicides, (2) problematic drinking behaviours prior to death – in 30% of cases, (3) alcohol and drugs affected at time of death – 53.5% of suicides, (4) officers with work performance issues at time of death – 31.5%, (5) under investigation at time of death – 23%, (6) communicated intent to suicide prior to death – 43%, (7) suicides who were smokers at time of death – 66%, (8) visits to doctor within one day to two months prior to death – 34%, (9) visits to medical practitioner within 12 months prior to death – 68%, (10) taking anti-depressants and other psychotropic medicines at time of death – 40%, (11) those with a diagnosis of mental illness at time of death – 77%, (12) depression featured in suicides at time of death – 31.5%, (13) acute incidents/events at time of death – 40%, (14) organisational referral (welfare/psych/medical/EAP) – 51.5%, (15) presence of negative life event(s) within 12 months of death – 63%, (16) presence of trigger event or precipitating factor – in 20% of suicides, and (17) relationship breakdown within 12 months of suicide – 60% of suicides.137

136 Stephen Barron (2010) Police officer suicide within the New South Wales Police Force from 1999 to 2008, Police Practice and Research, 11:4, 371-382, DOI: 10.1080/15614263.2010.496568. 137 Ibid.

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Officers suffering from psychological injuries are within the scope of many of those findings, yet it seems that the extent of the risk of self-harm is underestimated. It is noteworthy to mention that 51.5% of those officers were the subject of some form of mental health referral but still committed suicide. This in itself could well be an indicator that not enough is being done for these officers, and that referrals are not necessarily the ultimate in suicide prevention strategies. Barron, S (2010) identified a significant link between organisation factors and suicide, which were more prevalent as possible causal factors than traumatic events; With respect to operational stressors, work-related trauma only featured in 9.5% of those officers who committed suicide. Performance and work-related adjustment issues were present in 43% of the officers, almost one-third had problematic work relationships, and one-third was under internal investigation or subject to a workplace review. Organisational factors, including problematic management and leadership practices in policing appear to be an increasing feature in police officers who develop work-related stress and psychiatric illnesses (Barron, 2008). It was apparent in reviewing the documentation and statements of family, friends, and colleagues of the officers who completed suicide that a number of organisational factors may have featured in the development of the suicidal behaviour(s) leading to the decision to suicide. These factors appeared to include poor management practices, poor communication, an absence of training in the recognition and assessment of self-harming behaviours, inadequate supervision (including access to firearms), and a lack of continuity of care.138

Research published in 2012 found 17 per cent of suicides in Victoria between 2000 -2007 were work-related.139 The definition of "work-related" includes deaths at a workplace, by those using means available to the individual because of their job, such as guns or chemicals; those that police or coronial investigations found involved workplace harassment or bullying, injury, excessive hours or pressures, traumatic events, and fear of or actual retrenchment or unemployment.140 Of 642 work-related suicides, 55% had an association with work stressors.141 Work stressor cases identified included business difficulties, recent or previous work injury, unemployment/redundancy or conflict with supervisors/colleagues (including workplace bullying). Work-related suicide is a substantial problem, for which few detailed population wide studies are available. Further research is required to understand the contribution of work stressors and effective interventions.142 This evidence shows the significant impact that a person’s work life can have on their mental wellbeing. Bullying in particular can have a serious impact on an individual’s health and wellbeing, and there is some evidence linking bullying to suicidal behaviour.143

138 Stephen Barron (2010) Police officer suicide within the New South Wales Police Force from 1999 to 2008, Police Practice and Research, 11:4, 371-382, DOI: 10.1080/15614263.2010.496568 . 139 McColl, G. Policewomans death shines spotlight on the problem of work related suicides, October 2015 140 Ibid. 141 Stephen Barron (2010) Police officer suicide within the New South Wales Police Force from 1999 to 2008, Police Practice and Research, 11:4, 371-382, DOI: 10.1080/15614263.2010.496568. 142 Routley, V, Work-related suicide in Victoria, Australia: a broad perspective (2012). Available at http://www.ncbi.nlm.nih.gov/pubmed/22132703 . 143 Commonwealth of Australia (2007). Living Is For Everyone: research and evidence in suicide prevention. Canberra. Available at http://www.livingisforeveryone.com.au/Research-and-evidence-in-suicide-prevention.html.

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It’s hard to understand why every effort is not made to ensure bullying does not occur in the workplace, and why workers are still being pushed to this extreme. The insurance (workers’ compensation and TPD) claims process and unnecessary delays also has a connection to suicide. In another article published on 17th January 2015, Slater and Gordon Lawyer John Cox told the Illawara Mercury that “there are approximately 268 outstanding TPD claims, known as the ‘Forgotten 300’, and there is evidence that the delays have led to the suicide of former police officers waiting for their claims to be assessed”.144

A Nation-wide Problem Just like Queensland, workers compensation legislation in every other Australian State and Territory contains an exclusion clause with regards to psychological injuries and their causal connection with management action;

• New South Wales – Section 11A Workers Compensation Act 1987

• Tasmania – Section 25 (1A) Workers Rehabilitation and Compensation Act 1988

• Victoria – Section 82 Workplace Injury Rehabilitation and Compensation Act 2013

• Western Australia – Section 5 (4) Workers Compensation and Injury Management Act 1981.

• South Australia – Section 4 Return to Work Act 2014

• Australian Capital Territory – Section 4 (2) Workers Compensation Act 1951

• Northern Territory – Section 3 (1) Return to Work Act

• (Commonwealth) Section 5A Safety, Rehabilitation and Compensation Act 1988.

• Under the DVA Act (Commonwealth), psychological injuries are not treated differently to physical injuries.145

An analysis of data from all Australian jurisdictions has failed to find any long-term cost

savings resulting from increasing exclusionary provisions for psychological injury claims

(Guthrie, 2007).146

Figure 3 shows the number of accepted Australian workers’ compensation claims for mental stress in comparison to the acceptance rate of all other claims. 147 The graph clearly shows that while the acceptance rate of all other claims (Australia-wide) remained higher than 90% over the period, the acceptance rate for mental stress claims was notably lower, ranging from 69% in 2005 –2006 to 68% in 2010 - 2011.

144 http://www.illawarramercury.com.au/story/2822996/full-statement-compensation-lawyer-john-cox-reacts-to-metlife-pledge/. 145 http://www.safeworkaustralia.gov.au/sites/SWA/about/Publications/Documents/875/comparison-wc-aug-2014.pdf pp.82-84. 146 Cotton, P. ‘Psychological Injury in the Workplace,’ Australian Psychological Society (2008). Available at

https://www.psychology.org.au/inpsych/psych_injury/. 147 Worksafe Australia; Incidence of Accepted Workers Compensation Claims for Mental Stress in Australia, 2013, p.9.

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Figure 3 Accepted workers’ compensation claims as a proportion of all lodged claims (a): Mental stress claims and all other accepted claims, Australia (b), 2003–04 to 2010–11p

Note: Dotted line indicates 2010–11 data are preliminary. (a) The number of claims lodged includes claims that were still pending at the time the data was provided to Safe Work

Australia: the most recent years’ data have a larger number of pending claims. (b) Data from Tasmania, ACT (Private) and Seacare were not available.

An article published by the Illawarra Mercury on 26th June 2015 reported that 90 New South Wales police officers have had their compensation claims unnecessarily delayed, and have suffered at the hands of insurance companies.148 In another article, Slater and Gordon Lawyer John Cox told the Illawara Mercury “I have seen my clients wait years for their TPD claims to be determined, and in my opinion, MetLife has not properly or adequately addressed this issue which has continued to cause extreme distress to my clients, aggravated their symptoms and delayed their recovery”.149

NSW Greens MP David Shoebridge told the ABC of the issues faced by NSW Police

Officers which he became aware of after representing injured police in his former career

as a barrister.150 Mr Shoebridge stated that with regards to insurance claims that ‘we need

to ensure that those claims are handled promptly, fairly and independently...At the

moment, there are many outstanding psychological injury claims that have been running

for years. That aggravates the injury.'151

148 http://www.illawarramercury.com.au/story/3173655/former-illawarra-police-still-waiting-for-payouts/. 149 http://www.illawarramercury.com.au/story/2822996/full-statement-compensation-lawyer-john-cox-reacts-to-metlife-pledge/. 150 Death in the line of duty. ABC. 2 March 2014. 151 Ibid.

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Western Australian law firm Foyle Legal have stated on their website that most stress claims will be rejected by insurers due to the exclusion clause related to reasonable management action. The firm have highlighted the bias approach to the claims process by stating that ‘a workers compensation insurer’s first port of call will often be to send you to one of three psychiatrists in Western Australia who more often than not will state that workers are not suffering from a mental illness, the claim relates to circumstances outside the work or the factors stated above in Section 5(4) of the Workers Compensation and Injury Management Act 1981 are the main reason for the claim – this will lead to the claim being disputed by the workers compensation insurer.’152

On 25th October 2010, ABC news reported that almost 400 workplace injuries in Tasmania

were related to mental stress, including depression, anxiety or drug and alcohol-related

problems.153

Websites such as ‘Diary of a WorkCover Victim,’154 ‘A WorkCover Victims Diary’155 and

‘The Forgotten 300’156are full of horror stories submitted by workers in various states who

have fallen victim to a system that is failing them. The Forgotten 300 page was recently

shut down by the NSW Police Hierarchy who took offence to some of the information on

the page which had over 55,000 followers. This in itself should be a fair indication of the

enormity of the problem faced by workers.

152 http://foylelegal.com/disputed-workers-compensation-stress-claims/. 2 April 2015. 153 Stress blamed for workplace injuries. ABC. 25 October 2010. 154 http://www.injuredworkerssupport.org.au/seriously-injured-workers-may-feel-hopeless-and-suicidal-diary-of-a-workcover-victim/ . 155 http://aworkcovervictimsdiary.com/category/workers-compensation/ . 156 http://theforgotten300.com.au/ .

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Recommendations

1. A Royal Commission into the Queensland Workers’ Compensation System, the inadequate decision making processes, and lack of suitably qualified staff.

2. A Royal Commission into the bullying culture of the QPS and their treatment of injured workers.

3. Legislative amendments to the Workers Compensation and Rehabilitation Act (2003) Qld, namely;

i. Amending the wording of the exclusion clause provisions of section 32 (5) of the Act so that the definition is not so broad as to enable the provision to be manipulated and abused to the detriment of workers; and

ii. The removal of limitation periods for lodging psychological injury claims. This will permit workers to still lodge claims once internal disciplinary investigations are finalized, when the outcome of such an investigation is likely to prove that management action was unreasonable; and

iii. Amendments to Section 32 (5) (c) of the Act so that the Insurer and the Regulator may also be held accountable for unreasonable delays, unreasonable decisions and other unacceptable acts that cause psychological harm to an injured worker; and

iv. Clear legislative deadlines for the Insurer and Regulator to determine claims, with deeming provisions if the decision is not made in the stated timeframe.

4. That workers compensation claims be determined by an independent body that is

not the employer’s insurer.

5. That adequately trained and qualified persons with investigative backgrounds are employed to adjudicate claims.

6. That officers involved in disciplinary investigations of any degree are provided a support person by the Queensland Police Service during the interview and investigation process to mitigate emotional distress from the incident.

7. That the Queensland Police Service conduct an entire review of their psychological wellbeing model and implement adequate support systems for injured officers.

8. That the Queensland Police Service implement a career transition scheme similar to the model adopted by the Australian Defence Force.

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APPENDIX 2

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Source: Submission by member of the public on the Independent Review of the Queensland Police Complaints, Discipline and Misconduct System (2011). http://www.premiers.qld.gov.au/publications/categories/reviews/assets/member-of-the-public4.pdf

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APPENDIX 3 SUBMISSIONS MADE TO THE INDEPENDENT INVESTIGATION INTO THE QUEENSLAND POLICE COMPLAINTS, DISCIPLINE AND MISCONDUCT SYSTEMS Source; http://www.premiers.qld.gov.au/publications/categories/reviews/qps-complaints.aspx

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