Questions arise over workplace bullying compo judgements
In this story
For close to 16 years Jason Roberts was employed in then federal Department of Innovation, Industry, Science and Research as a manager, and for a time, an OHS policy officer. To comply with a legal settlement, this is not his real name. Roberts says the trouble began when in 2009 he wrote a 19-page, 5000-word report to the Management Advisory Committee on public service innovation. In that report, seen by The Saturday Paper, Roberts criticised his department for its lack of innovation and “over-politicisation”, describing it as “pedantic, process driven and risk averse”. He said employees were not given the opportunity to inject new ideas and whistleblowers were covertly punished, adding that the department had an “over-hierarchical structure” with too many branch and division-level middle managers.
Within a year of writing the report, Roberts was placed on a performance-management program and demoted from management to the most basic clerical-level job, doing data entry all day. He had not been required to fulfil performance-management obligations before writing the report.
Roberts says that following his demotion and commencement of the performance-management program, he began to feel tired, angry and confused. He consulted his GP, who diagnosed him with depression caused by workplace bullying. Over the coming months, his mental health deteriorated and he eventually took a redundancy, raising the matter with the Fair Work Commission and being paid out the maximum six-month settlement.
Roberts then lodged a workers’ compensation claim for “psychological injury”. The department responded by sending him to a psychiatrist, supplied by the medical services company MLCOA and paid $1000 by the department’s insurer for a psychological assessment. The psychiatrist was flown from Canberra to Roberts in Adelaide. After a one-hour assessment, the psychiatrist diagnosed Roberts with a “paranoid personality disorder”. As a result, the psychiatrist’s report stated: “It appears that Mr Roberts has a paranoid personality style which has been an ongoing factor for him. I suspect this has been a barrier in him being able to work through the underperformance management in the workplace.”
On the basis of this assessment, Roberts’ compensation case was defeated and his manager went unpunished. Roberts was left anxious, obese and unemployed, and his young family became dependent on the sole income of his wife. “I have been to hell and back,” he says.
The Saturday Paper made a freedom-of-information request to the department and its insurer, Comcare, to determine how many times the psychiatrist in question had worked for Comcare, but this was denied under third-party confidentiality. A second FOI request revealed that Comcare paid $2,744,128 to MLCOA for psychological injury assessments in the decade ending in 2012. At an average $1300 a report, that suggests nearly one report being commissioned every working day over that 10-year period.
Though Jason Roberts’ medical records show no significant history of depression prior to the alleged bullying, it must be acknowledged that Roberts may have been a vexatious litigant. He may have been oversensitive or even dishonest. Psychological injuries are expensive, easy to fake, heavily contested and impossible to examine in the same manner as a physical injury. There is no getting away from the fact every party has a direct financial interest in their assessment.
Some people believe that we have become so attuned to issues of self-esteem and bullying in the workplace that the balance has tipped too much in the aggrieved party’s favour – a worker can’t be criticised or told to improve their work without being entitled to complain of injury or harassment.
The Australian Human Rights Commission estimates that the total cost of psychological injury claims through Comcare and its state compensation counterparts is more than $10 billion a year. Psychological injuries make up 6 per cent of 132,000 accepted worker compensation claims for serious injury in Australia each year. “Serious” injuries are defined as those requiring more than a week off work, hence they are the most expensive type of workplace injury – Comcare estimates the cost as an average $205,000 per claim.
Psychological injury claims are a rising issue, particularly among public service and female workers. The Comcare scheme has seen a 48 per cent rise in psychological injuries during the past four years, and there have been rises in mental disorder injury claims in Victoria and South Australia during the past 18 months.
Anti-malpractice lobby group Whistleblowers Australia suggests the use of compulsory psychiatric examinations is a common employer tactic to deal with workplace bullying complaints. While they say most medical examiners are independent, biased reporting is a problem faced by victims of bullying, leaving them disempowered and discredited.
In addition, during court appeal periods, complainants say they do not have access to proper medical care and the litigation itself makes their condition worse. Indeed, some injured workers say the reason they require such long periods off work after making a psychological injury claim is because of the stress caused by the adversarial approach within workers’ compensation schemes.
Psychologist Dr Evelyn Field says she is in no doubt that employer and insurance psychiatric examiners have caused trauma in many of her patients. Field suggests that, along with the power asymmetry and an obvious conflict of interest, the problem with medico-legal examiners is their narrow range of experience and predisposition to the employer view of the workplace – they are often bosses themselves, middle-aged white men with offices in upper-middle class areas. They are also trained, she says, to look at individual coping mechanisms rather than cultural problems.
“Some of these psychiatrists have longstanding financially rewarding relationships with insurance companies,” she says. “Some of them are simply topping up their super.”
In response to questions arising from the case of Jason Roberts, a spokesperson for Comcare said the company has no longstanding financial relationships with medical examiners. “We do not have formal arrangements with any doctors or IME [independent medical assessment] providers, and there are no set fees for assessments and reports. There is no question of bias in the opinions provided in independent medical examinations.”
The company engages medical professionals through a number of providers, but their use of MLCOA is more frequent as the company is Australia’s largest IME provider, the spokesperson said.
A statement from MLCOA said it is not uncommon to draft doctors from interstate when a specific expertise is otherwise unavailable or to avoid the likelihood of a prior relationship with a person involved in the case.
Evelyn Field runs a weekly support group in Melbourne for people who identify as victims of workplace bullying, and invites me to attend. “It will be a real eye-opener,” she says.
I arrive at her Caulfield home office on a typically glum winter’s day. Field, a tiny woman tipping 70, explains that she organised one of her patients, Sandy, to come and chat with me. She says Sandy is already waiting in the next room.
Sandy explains she was working at a theatre when the bullying started, after she defended another colleague who was being teased and excluded by the other staff. Her co-workers then turned on her. “Every time I went to speak to someone, they turned their back and just ignored me,” Sandy says. Her doctor diagnosed her with post-traumatic stress disorder, and she made a workers’ compensation claim. Her assessed level of damage was high enough that she could sue.
WorkSafe Victoria sent Sandy to a psychologist who dedicated much of their session to asking her why she was dyeing her hair, and eventually implying there were reasons other than the bullying that had led to her mental breakdown. “She spent more time asking me about how much I liked my garden and how much I missed it when I moved than she did about what happened at the workplace,” Sandy says with a sarcastic smile.
Though it was not disputed that Sandy was bullied at her workplace, the issue was whether she had any pre-existing coping issues that affected her condition. Thanks in part to the psychiatrist’s report, Sandy’s case was defeated in the Supreme Court.
Before attending Field’s group, I hear from a lawyer who has become increasingly disenchanted with workplace psychological injury cases, offering to talk to me on the proviso he not be identified. The picture he paints is not one of medical care but of legal realities.
“We simply advise that our clients go to these insurance-sponsored appointments and then we pay for one ourselves,” he says. “Inevitably, the report paid for by the employer or their insurer will go against the client, so the psych we pay, we come up with a report in favour of our client. We will also send our psych the report from their psych and they act to repudiate the conclusions in the report. This is then weighed up by the court. It’s obviously a gamble, because the client has to pay for this out of pocket and this still may not win.”
Four years on, Jason Roberts has struggled to find a new position in the public service. He finally secured employment as a casual security guard. He appears a shadow of the person who wrote that wide-ranging OHS report on innovation a few years ago.
“I am still depressed about it,” he says, “and I think it really affected how I view myself. It’s really hurt my self-confidence – I really doubt myself deeply. All in all, I have lost my love for life.”
This piece was updated on July 9, 2015, to make clear that Jason Roberts is a pseudonym.
This article was first published in the print edition of The Saturday Paper on Jun 27, 2015 as "Staking a claim". Subscribe here.