I've not been alone. Labor and Coalition governments have noted the decisions and attempted to close the loopholes the courts have created in the Safety, Rehabilitation and Compensation Act. As a result we've had 59 amendments to the act since 1988.
But it seems they have not been enough. A review of the act by Melbourne barrister Peter Hanks, QC, and former head of the Defence Department Allan Hawke has proposed a major overhaul to close anomalies they have found. Hopefully, when the government implements these, the act will get back to what it should be - an act that provides for the rehabilitation of injured employees and/or compensates employees for injuries sustained at work.
Following the review, media attention focused on efforts to curb the dubious claims for psychological injuries and Comcare payments for unconventional therapies
But Hanks also proposes tightening the provisions covering the payments for heart attacks and strokes.
Originally, he says, Comcare and other determining authorities did not accept liability for heart attacks and strokes that occurred at the workplace unless employment contributed to the underlying disease. A heart attack or a stroke was treated as a manifestation of a ''disease''. Liability to pay compensation was only accepted where employment had contributed to the disease (or its aggravation) to a material degree.
To a lay person like me, this sounds sensible.
But not to the courts. Hanks noted that in 1998 that position was rejected by the full Federal Court, which followed a High Court decision from 1996, dealing with equivalent provisions in the NSW act. The High Court held that a cerebral hemorrhage was an ''injury'', not a ''disease'', under the NSW legislation; and the Federal Court held that a heart attack was an ''injury'', not a ''disease'', under the Commonwealth act.
On these interpretations, if the ''injuries'' occurred at the workplace (and therefore ''in the course of employment''), the employer was liable to pay compensation, regardless of whether employment contributed to the ''injuries''.
So let's speculate on this. Imagine a bloke who has smoked heavily for years and at age 45 gets a job with the Commonwealth where he works happily in a low stress environment. Then one day he has a heart attack. According to the High Court, Comcare must pay out for his ''work injury''. You need years of legal training to come up with such nonsense.
There have been a succession of equally ludicrous court decisions on psychological injury.
It is enough for an employee to ''perceive'' that something happened in his or her employment to justify a claim of psychological injury. It doesn't matter whether the perception was reasonable or reflected reality.
Hanks proposes changes to the act that would, in his words, introduce a ''modest degree of rigor ' in the processes. An employee's perception of a state of affairs would only carry weight where that perception had a reasonable basis. ''It is an unfair burden on employers to make them liable to pay compensation for a psychological injury that is caused by an employee's fantasizing rather than by any aspect of employment,'' he says.
Who could disagree with that?
Compensation for psychological injuries would continue beyond 12 weeks only where the diagnosis of those psychological injuries had been made or confirmed by a psychiatrist, a clinical psychologist, or a general practitioner who has completed mental health training to a standard approved by Comcare.
Hanks points out that between 2006-07 and 2009-10, psychological injury claims accounted for 10 per cent of all claims, but in 2010-11 this rose to 12 per cent of all claims, and 32 per cent of the total cost of claims. In 2010-11 the average duration of incapacity for employees with claims for psychological injuries was 12.3 months, compared with falls and slips keeping people out of work for 4.1 months or vehicle incidents 3.2 months.
One of the major problems in the public service is how to deal with difficult individuals with psychological problems. Anyone working in the service for more than a year will know of people who perceive they have been done all sorts of injustices over many years from a whole variety of managers and colleagues. These individuals have a serious negative impact on productivity. The court records show that some disputes go on for decades.
Conflicts and personality clashes arise in every workplace. Sometimes an individual is victimized or bullied by a manager. This can often be resolved by separating the warring parties. In a new environment, reasonable individuals can carve out new happy relationships and get on with the job.
But some individuals, after a short time, are back in conflict. Often the Employment Services Scheme will be called into play, with outside counselling of the employee. It seems that psychiatrists are able to put labels on the conditions - depression, obsessive compulsive, paranoia - but finding a ''cure'' is another matter.
If the pattern is repeated time and time again and the individual can find no one they can get along with, some action has to be taken.
In the end, for the sake of the workplace, termination of employment is the only answer.
But while this may solve a department's internal problem, it can exacerbate the individual's mental condition and may even provoke an unwelcome response, as seen in violent incidents around the world.
Sadly some individuals, unable to change their ways will end up lonely and in long-term unemployment.
Read more: http://www.canberratimes.com.au/comment/finding-a-cure-for-compo-malaise-20130406-2hdqj.html#ixzz2PlwL9Wfm
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