Politicising Medicine and Medicalising Industrial Relations

Render unto Caesar ...

I will talk about our two recent industrial epidemics of mass psychogenic illness, the first that of RSI then that of psychological injury, commonly attributed to stress in the workplace.

Karl Popper suggests that we need social theory to be able to predict the unintended consequences of our actions.[1] Social theory complements my experience as a forensic psychiatrist.

Arising from this analysis are challenges that all interest groups need to address.

Claiming compensation is a behaviour driven by ideas. Workers’ compensation legislation, as written in NSW, is based on a notion of an ‘injury’ of a mind. It ignores the operation of free will and choice. In any social system, actions can be evaluated through use of a rational choice theory which examines reasons and motives, beliefs and desires of everyone involved against a matrix of social mores and values [2]

A study of mass psychogenic illnesses goes some way to explain what has gone awry with Workers Compensation, a jurisdiction which has blown out its budget in NSW by up to two billion dollars.[3]

The mind is influenced by ideas and their meanings, by what people believe and what they want. Events in the real world influence the mind only through their meanings, most of which are socially constructed.

In 2000, eighteen years after the establishment of the first Interim National Occupational Health and Safety Commission, now known as WorkSafe Australia, the rate of accidents has been significantly reduced but the benefits have been squandered by the rising costs associated with epidemics of claims for new, previously unheard of, indeed hypothetical, injuries.

It is inevitable that the costs of workers’ compensation, now borne by the State Government, will be reigned in but I first wrote about that 17 years ago and like the price of houses, these costs seem to move in only one direction, that is up.

Poor health (morbidity) is measured by counting clinician/patient contacts: By this measure, the health of the work force is not improving despite the money being spent on it.

The longer term problem is to determine how, and by what criteria are changes to be made to create a scheme with sustainable costs.

The problems go back to 1983 when, with the Accord, unions agreed to forego wage rises to get inflation under control, in return for a focus on long neglected Occupational Health and Safety.[4]

The leaders of the clerical unions had taken the position that the introduction of highly productive word processing technology meant that some of their members would become redundant.[5],[6]

Curtailing productivity increases from new technology seemed to be an effective way of saving jobs. There was a genuine risk that computer sweat shops might develop with data input personnel operating as extensions to machines in mindless boredom and performing tasks that were meaningless to them.[7]

In 1981 a new hypothetical condition, Repetitive Strain Injury RSI, was invented in the Victorian Trades Hall by John Mathews, an industrial health adviser. The National Health and Medical Research Council was presented with these new ideas by the Commonwealth Department of Health and, at it’s Council meeting in June of 1982, it adopted them in their entirely. The NHMRC gave its legitimation to a booklet called approved guide to prevention;repetition strain injuries. In late 1983, the ACTU circulated, through affiliated unions, lists of symptoms and of sympathetic clinics that would issue certificates for RSI.[8] [9]

I recognised an epidemic of hysteria, of occupational neurosis, writers’ cramp, spread by the rumour that movement at work was dangerous. I went to see the Chairman of WorkSafe who welcomed me. ‘How interesting’, he said, ‘I will ask my brother, a psychiatrist’.

The following week I learnt that the psychiatrist had agreed with me, that RSI was, as I had suggested, occupational cramp, and that it was already classified in the international classification of diseases as a mental and behavioural disorder.[10] History showed that it had become epidemic on previous occasions when medical attention had been paid to it.

But, I was told, RSI was a ‘political’ issue. There was nothing that WorkSafe was prepared to do to change its activities or its education programs. It continued to promote the notion that RSI was an injury and that it was to be prevented by encouraging medically-approved absenteeism. The stated aim of WorkSafe was to coerce employers to make physical changes in the workplace or face increases in insurance premiums if too many claims were made against them.

WorkSafe employed doctors to introduce this junk science into workplaces. A generation of safety officers was taught that RSI was caused by movements, posture or overuse and that it was to be prevented by physical means. The pattern of spread contradicts the theory.

RSI was more common in part time than in full time workers and it spread right through the workforce to process workers, teachers, nurses, drivers, cleaners and managers whose work involved neither rapid movements not repetitive work nor did their occupations provide an opportunity for overuse to occur.[11]

This idea that RSI was an injury with physical causes was contradicted by the rapid rise in its incidence and its distribution in the workforce, as RSI was ten times more common in keyboard telephonists than in speed typists.

I have provided some relevant graphs. The RSI epidemic as analysed in Telecom is reported the graph below.[12] Other government departments, state and federal were similar.

Table 9 Telecom case distribution[13]

60,000 cases emerged in Australia as our newly-invented injury became pandemic. Hundreds of thousands of cases were diagnosed and subsequently mismanaged world wide. The American Occupational Health and Safety Organisation (OHSA) referred to an ‘RSI Rule’ that would cost $US4.5 billion to implement while the US Chamber of Commerce feared that costs of this proposed legislation might cost $US90 billion.[14] Former president Clinton passed RSI legislation in his last weeks and President Bush immediately repealed it. Much American legislation has been written within the Australian-invented RSI, injury model.

Medical concepts of what was ‘safe’ were constructed to stabilise industrial conflict. The unions believed that they had successfully used the occupational health industry to drive an industrial relations agenda of improved physical workplace change. They had done precisely the opposite.

Epidemics of arm symptoms followed prevention campaigns. Doctors found the syndrome in limbs which could not have been affected by overuse. They legitimated an increasing number of precursor activities as ‘causes’ of RSI. Employers were held to be negligent at common law if they refused to issue the very warnings that had caused the problem.

This list of attribution theories was not exhaustive: Chairs of the wrong height, badly positioned visual display units, faulty work stations, poorly designed furniture, inactivity, incorrect posture, noise, microfiche, lighting being too bright or inadequate, mouse clicking too often, noise, not activity, light, noise work or too much of them, old or new equipment, over use, repetitive work, soft touch keyboards, too many years of work, working in a constrained posture and the microwave facility overlooking Canberra, the Black Mountain Tower, were all blamed for causing RSI.

The medical profession embraced this new injury eagerly. Papers were published in refereed journals on its symptoms and causes. Claimants were then given anti-inflammatory medications, were operated on at various sites, splinted, rested and sedated. Experts developed therapeutic empires with a vigorous entrepreneurial spirit that was undeterred by the ineffectiveness of their methods'.[15] RSI was not relieved by its purported remedies.

The most parsimonious view of epidemic hysteria, mass psychogenic illness, is that it requires only two elements; the availability of a belief and an opportunity for action. Both were being generously provided by WorkSafe.

Table 3 NSW Workers Compensation Commission Costs

Compensable sick roles were created for those who were unable simultaneously to meet both their occupational and domestic obligations. As women had more obligations than did men, it should not surprise that 93% of RSI sufferers were women, A doctor’s certificate became the currency of negotiation and the Clayton’s strike became one of health-related absenteeism.

Information from the Government Insurance Office of NSW

New Cases: NSW Compensation Commission

Compensation and Insurance premiums. In 1986, the NSW Workers' Compensation Commission stopped collating these figures.

In my series of several hundred, the women who made claims for RSI were not representative of the census population although their biology was no different.[16]

Rather, they were over-burdened with common stresses that conflicted with their working obligations. The afflicted were ten to twenty times more likely than the census population to be getting married or getting divorced and fourteen times more likely to be pregnant. 24% of them were coping with very sick children or terminally ill parents.[17]

Personal ill health affected one third, a rate between ten and twenty times that of the census population. 9% needed surgery for unrelated issues and were able go off work on compensation to have it.

22% already had a history of past litigation on health issues or of having taken more than six months off work with previous claims.

Afflicted women did not complain of their working conditions other than to recite the causes they had learnt. Only ten per cent had workplace difficulties of the kind that are reported by today’s claimants for stress. All were imbued with the belief that their work had harmed them and would continue to do so because they had been told so by their doctors, and by WorkSafe, an authoritative government-funded body.

Paramedical practitioners, chiropractors, and some medical practitioners imposed their own approximate diagnoses on their clients. They showed no understanding that people behave according to what they believe is wrong with them, and not according to their internal derangements.

This brings me to the subject of this conference: psychological injury

The epidemic of psychological injury can similarly be traced to government policy. The Accord of 1983 had contained one of Mr Hawke’s untenable promise: ‘A worker is entitled to a stress-free workplace’.[18] In 1986 a campaign was launched by the occupational health lobby to eradicate occupational stress.[19]

Another hypothetical ‘injury’ was invented. Like RSI, it was entirely new to the medical profession and it was never defined. Some claims officers took the position that if a nominated condition was in the psychiatric lexicon, the Diagnostic and Statistical Manual, (DSM). [20] it was acceptable as’ psychological injury’. Causation did not enter the picture.

Occupational psychological injury, as presented to clinicians, was apparently not ‘nervous shock’ about which there was a great deal of case law. Nor was it a traumatic disease of mind.

It seemed to be a rationale that would bring the effects of stress into the ambit of personal injury litigation.

‘Psychological injury’ soon came to accommodate major and minor nervous breakdowns that occurred in persons who had jobs. The new legislation shifted substantial mental health costs to the WorkCover budget and onto a new class of counsellors whose notions of causation were influenced by the possibility of getting reimbursement for occupational causes. But paying attention to false causes does not lead to recovery from nervous disorder, any more than killing sparrows will eliminate malaria.

Psychiatric evaluation of claimants uncovered schizophrenia, delusional disorders, dementia, alcoholism, substance abuse, factitious disorders and malingering by false imputation of cause. Claimants were not referred in the first instance to forensic psychiatrists but to psychologists or counsellors who failed to recognise even the most common mental disorders and failed to understand concepts of causation in mental disorders. The failure of proper gate keeping procedures cost dearly.

Excluding mental illnesses, many, if not most claims were the normal and expected responses to industrial violence, abrasive and dysfunctional relationships, interpersonal difficulties, overwork, poor industrial relations, bad management and understaffing.

In 1996 some changes in the law disqualified for compensation the undoubtedly hurt feelings associated with failure to get promotion, anger and disappointment about redeployment, retrenchment and disciplinary action, but local doctors did not know this and kept right on writing certificates and generating costly liability for counselling and evaluation procedures.

Institutional arrangements, enshrined in legislation, demanded that the worker be diagnosed as ‘psychologically injured’ before anything could be done about his or her predicament.

Unions

Newly amalgamated mega unons neglected workplace issues. They failed to recognise that they had handed over their traditional workplace responsibilities to the medico-industrial complex, and that by doing so, they had made themselves redundant.

In the education, health and finance sectors, new large amalgamated industry-based unions found that they were constrained from representing the worker because the offender was often also a member of the same union.

Instead of offering immediate help to their members to sort out their industrial situation, those who called for help were told to go to the doctor. A medical certificate became the currency of negotiation. As unions had less to offer, membership dropped further.

Medicalisation

The occupational health industry was poised, ready to locate the consequences of industrial problems in the claimant. Doctors and psychologists obliged with a diagnosis of psychological injury for which they quickly constructed a range of therapies. It would have been churlish to diagnose an occupational problem in the climate that prevailed.

The doctor did not examine the workplace, nor was he trained to do so. The mystique of medicine was invoked to create sick roles for those who were unable to cope with the demands of the late twentieth century, super-efficient and over-rationalised workforce.

The worker was often justifiably angry, humiliated and sometimes burnt out. Emotional trauma affected the soul, mind, feelings, but her psyche was not accessible to medical remedy.

Of those that I examined, at least nine out of every ten had immediately been prescribed a modern antidepressant and all of them had been offered one.

This left me in no doubt as to whose agent the doctor was, trying to adjust the worker painlessly to the situation. Mood elevating medication occasionally obliterated any sense of urgency to go back to work.

The conscience dissolved in a heady mixture of serotonin and medical absolution as compensable ill health set in. The claimant duly attended wherever she was sent and had to continue to demonstrate that she was indeed sick.

I asked hundreds of claimants; “Did the therapy help you’ and their response was consistent with the operation of a placebo ‘It felt good at the time but the symptoms returned as soon as I thought about going back to work’

Often it was the workplace that needed diagnosis, not the worker.

Conflict resolution, which might have headed off the problem before stress leave was needed, did not take place immediately. It might have restored good management. Days, weeks or months later, the rehabilitation provider came on the scene. She replaced the shop steward who had formerly articulated and negotiated the concerns of the worker.

The rehabilitation provider’s job was to get the claimant back to work. It was unclear whose agent she was, I would suspect that she was the agent of the state that was footing the whole bill.

Some rehabilitation providers saw their task as getting workers back ASAP. Others used the opportunity to sell their own counselling services at great benefit to themselves, implying greater benefits to the claimants’ ability to receive money but to the detriment of the health of the claimant. The conflict between supporting the claimant’s health and her financial interest was rarely recognised.

The clinician who asked the right leading questions got the desired diagnosis. The next medical examiner was faced with a well-rehearsed claimant, reciting symptoms in the language of American psychobabble far removed from his or her own culture and education.

No consideration was given to the difference between traumatic neuroses and conflict neuroses. The former are nervous shock claims, the latter the effects of having a conflict about working because work is horrible or the worker has a conflicting obligation. As women had more obligations than did men, it should not surprise that most stress claimants are women,

The effects of this legislation on the workplace

These therapeutic activities were the unintended consequences of the State’s legislation and policies. Premiums blew out so the NSW Government contained unrealistically high compensation costs by paying workers out of its own coffers. Costs are now a major problem. Newly institutionalised ‘stress leave’ was not an economic consideration as sick workers were paid from a different budget, one subsidised by the State.

For the employer, it was financially logical to coerce health-related resignations rather than to risk being taken to the Industrial Court. At the same time, the option of simply saying ‘Sorry, you are unable to do this job’ became more difficult as it can cost tens of thousands of dollars to retrench a non-performing, incapable or unsuitable person.

Creating sick roles did not improve the workplace as no feedback loops exist to penalise bad managers and those who employed them. The bogey man of increased insurance premiums to punish transgressors lost any dissuasive power it ever had.

Bullies flourished. Some bosses cynically used health-adverse tactics, difficult shift work and shortened hours or tyrannised unwanted workers.

The cynical employer soon learnt that he could rid himself of workers he did not want by riding, insulting, overworking and humiliating them or leaving them in situations vulnerable to assault or harassment.

In the short term interests of economic rationalism, understaffing became endemic.

Where physical violence was a risk, particularly in nursing, policing, corrective services and some teaching areas, those responsible for budgeting did not seem to be including leave caused by burnout, assaults and other industrial casualties in the staffing budget.

Effectiveness issues

There is no evidence that counselling gets people back to feeling well or to work sooner after traumatic events. Scientific studies of the efficacy of debriefing show that the opposite is the case. Trauma counselling is part of a social movement rather than a remedy. Counselling feels nice but it is ineffective. Humans seem to have an infinite capacity for empathic relationships. Like the concept of treatment, which covers any and every doctor–patient contact, the content of psychotherapy, as compared with other conversations, has remained obscure.

Rather than inducing a sense of responsibility to go back to work and to struggle against ill health, some claimants emerged from their counselling with an increased sense of entitlement to be disabled. Sometimes a second payment from the Victims Compensation is pending and it also slows down recovery.

Others, paradoxically, go back to physically dangerous work situations in a somewhat dissociated state, after relaxation sessions that utilise pseudo-hypnotic techniques, like deep breathing and meditation. Nothing is done to alleviate the continuing risk in the dangerous work situation and the next assault or violent robbery, acts cumulatively, as stress does, and completely disrupts a working career.

Should doctors be paid for making the wrong diagnosis, or for the ineffective remedies based on that diagnosis, that is for bogus carpal tunnel operations where whole hand or glove distribution symptoms come back weeks later, because they were always hysterical neuroses? Should the state pay for ineffective counselling sessions that go on and on? The best way to delete such remedies, based on incorrect formulations, is to let the doctor know that unsuccessful treatment will not be reimbursed.

Such interventions and treatments that are ineffective in getting people back to work should be deleted. Who treats effectively and who does not? Why is this not even debated?

Rehabilitation problems

Rehabilitation of the physically injured worker was a major advance. However, I find many play for time by waiting for instructions from their rehabilitation providers to go back to work, when left to their own resources, they might have done so earlier.

What can we do with a police woman who has lost her nerve or one who now has three kids and no longer finds dangerous work acceptable? There are no institutional arrangements so claimants in this predicament can get paid for years just worrying about what they should do. What can be done, in this time of political correctness, about the working woman who has small children and finds that child care no longer attracts a subsidy? l would recommend early identification of reasons for continuing illness behaviour, a speedy exit and settlement according to a pre-ordained formula. Many long term claimants are not ill, but their predicaments make going back to work impossible.

The legislation returns a claimant to compulsory redeployment that is problematic for a small employer. Bosses and co-workers are often less than sympathetic and their attitude provides a further source of stress.

Expert issues

The issue of what constitutes expert evidence in any discipline is going to be a major subject of debate in the next ten years.[21]

WorkCover legislation encouraged the entry of many practitioners, some no more than report writers with low levels of professionalism and little knowledge of the areas in which they give opinion evidence. The evaluation process suffered, with diagnosis, in many cases, becoming a check list of symptoms generated by leading questions. Extensive pen and paper self-reporting questionnaires and other increasingly outlandish evaluation procedures were billed to the Insurer. Conflicts of interest abounded as the same person who gives the opinion stands to benefit from administering the remedy.

A new category of ‘report writers’ emerged. Many were young, inexperienced and some, although professionally qualified, had no knowledge of the forensic arena and no knowledge of the literature concerning stress and its behavioural and somatic manifestations. They routinely confused slander with whistle blowing, paranoid delusions with persecution, illness behaviour with nervous disorder, disorders of perception from real events. Most simply failed to recognise schizophrenia, major psychosis, personality disorder, dementia, alcoholism and substance abuse, all of which cause prolonged, poorly managed, costly and illegitimate claims, picked up only after some years when someone thought of engaging an appropriately qualified forensic psychiatrist or psychologist to review them.

This dumbing down was also happening in areas other than stress claims. Expert status in WorkCover is granted to retired general surgeons in orthopaedic matters. No other jurisdiction in the world would have tolerated a general surgeon as an expert in orthopaedic matters. A psychiatrist might, at least, be able to winnow out functional, disorders from the plethora of pseudo orthopaedic symptoms presented. In functional disorder, symptoms do not match clinical signs and cannot be explained by any pathophysiological or anatomical mechanism one can postulate.

When treatment does not work it is probably because the diagnosis was not right in the first place. Providers must be encouraged to make a full assessment before embarking on remedies.

Illness behaviour is not a suitable target for medical therapy as it arises out of a claimant’s predicament. Behaviour is a moral issue, a public policy matter.

In the new scheme, insurers were no longer gate keepers. Before this incremental dumbing down of WorkCover, insurers were aware of who had expertise in the relevant problem. Insurers were prepared to commission adverse reports and to consider them to be entirely reliable. These reports provided a benchmark for a final settlement. Assessors were carefully watched and evaluated.

Professionals who wished to make their living as medical (or psychological) assessors knew that they were self-employed, only as good as their own reliability, and that one major error of taking their client into a court case that it lost, would lose them a stream of work.

The new role of the former insurer is to assess claims and to make commercial decisions. They do this against a background of costly and unpredictable litigation and Rafferty’s Rules concerning what constitutes expert evidence.

We need to eliminate the current and unnecessary dichotomy between those examiners who never find anything wrong with a claimant and those who see all of them as totally disabled. It takes only a handful of rogue experts, with demeanour, supported by power, popular with judges to create an epidemic. WorkCover does not know the meaning of being an expert, and its mentor, WorkSafe, did not care.

The old chestnut to the effect that the legal system can sort out such differences in opinion evidence foundered on the costs of litigation once the nuisance value of any case became less than the cost of a day in court.

Experienced and skilled assessors are pitted against young graduates who do not base their opinions in a body of research. Some did not seem to know any literature exists. Even when they are rejected by a judge for sheer idiocy, they are back again, assessing the next day. This phenomenon is not new to Workers Compensation legislation, but is extremely costly, with insurers paying out huge sums to assess illegitimate or trivial claims, while those with serious and totally incapacitating physical injuries receive a pittance at Common law. The situation is unlikely to change unless the government takes advice from those who know what is happening. These problems cannot be deduced from columns of figures.

While there are excellent professionals in all disciplines, there are also many who, if any academic standards at all were to be applied, would not pass a due diligence assessment. The courts, however, are forced to assume that a course or a degree makes someone into an expert.

Experts and Legal Issues

The criterion of scientific validity as an essential ingredient of expertise has not been adopted in Australia where simple plausibility of expertise has held sway, with Adamcik[22] and more recently, Abalos[23] setting the standard.

Mrs Abalos developed RSI after doing some five thousand keystrokes an hour, one third the rate of a typist, and the court decided her case by, inter alia, an assessment of the expert witness’s demeanour. The High Court supported the judge’s right to do just that.

In 1964, Mrs Adamcik, widow of a tram conductor, sued the Victorian Transport Commissioner. Her husband had been tortiously injured at work and had subsequently developed leukaemia and died. The mainstream of medical evidence was that leukaemia was a disease of the white blood cells, in which they reproduced themselves to an abnormal degree, and its origin was in their chromosomes. Nonetheless, a physician of some age and dignity was found who offered the opinion that the physical injuries sustained, together with the mental stress accompanying them, had caused the leukaemia. It was apparent that his opinion was not supported by scientific nor statistical information. He was the only medical practitioner known to hold that opinion. The jury accepted his evidence and the widow won her right to lifelong compensation. The High Court confirmed that a judge or jury could choose whichever opinion it liked.

In each case, the High Court lost an opportunity to comment on the difference between expert evidence within the relevant body of scientific knowledge, and the unsupported opinions of persons who held expert status. It has become essential in Australia for the government to create legislation about what is to constitute expert evidence. An American model is available.

The weak link in any litigation that uses expert advice was corrected in 1993 in the United States with the Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals which changed the criteria by which the views of experts are to be admitted as scientific testimony in court.[24]

Daubert was one of a thousand actions, on behalf of infants with abnormalities, against the manufacturer of Bendectin, known in Australia as Debendox, a common morning sickness remedy. The judges allowed evidence from epidemiologists who had found no excess of foetal abnormalities among the progeny of users of the drug. The judges barred from giving evidence to a jury those experts who did no more than argue that it was impossible to prove that no causal relationship existed when Bendectin use and foetal abnormality coincided.[25]

The unanimous ruling states that the criterion of the scientific status of a proposition is that is can be tested, particularly by way of a logical process called ‘falsification’. That is, it must be possible to specify a set of circumstances, the occurrence of which, would demonstrate that the proposition is false.

In effect, Daubert replaces the Frye and Bolam tests of ‘expert opinion’, being that which is ‘generally accepted’ by a significant number of authorities in the field, with Karl Popper’s notion of science as ‘knowledge’ which has withstood rigorous testing. This sometimes entails a preliminary assessment, a Daubert Hearing, to decide if the reasoning or methodology underlying the testimony is scientifically valid

Scientific method includes putting up a proposition couched in the negative, a null hypothesis, and testing it to see if it can be knocked down. Examples of the null hypothesis are that the accused is not guilty and that the unicorn does not exist. In junk science, the null hypothesis is replaced by a positive assertion, one which cannot be proved to be untrue even if it is untrue.

One can never prove that a unicorn does not exist, as it might always be just out of sight, so a proposition asserting that a unicorn exists is not a suitable one for a scientific investigation. The presumption of innocence involving matters of causation is a null hypothesis, a hallmark of good law as well as good science [26]

WorkSafe

WorkSafe needs to confront a dichotomy between occupational health and occupational safety and to concentrate entirely and usefully on safety. Safety involves the minimisation of risk. Health involves the functioning of a person who may or may not have been exposed to a risk and may, or may not have been affected. Health is a matter for clinicians alone. History is replete with instances of legislators simply not understanding what is involved.

What is wrong with the patient and what should be done about it is not a matter for any one without medical qualification. Diagnosis is not a matter of ‘opinion’ anywhere but in the courts. Incapacity for work is a separate issue again and it cannot be assessed from questionnaires, check lists and leading questions..

Some practices are black holes from which no claimant emerges unable to recite symptom lists from the diagnostic and statistical manual of mental disorders.

WorkSafe should not advise on medical matters, unless it is entirely prepared to separate itself from the powerful lobby groups that control it. If WorkSafe wishes to continue to provide education in health areas, WorkSafe might consider developing a research unit to assist experts who want access to evidence-based medical literature.

Research needs to be done on the effectiveness of popular medical and paramedical remedies, how effective they are in the hands of those who promote them?

The Challenges To All Participants

Conclusions and suggestions

Government will have to set a priority between two incompatible interests: the health of the worker or the prosperity of the occupational health industry

It is self-evident that the health of the workforce will improve if workers are not compelled to go on being sick to get something done about their places of work.

New legislation needs to separate stress caused by traumatic accidents, commonly known as nervous shock, from that caused by undesirable workplace behaviours. The latter is an industrial relations issue, one for employers and unions.

WorkCover and Industry

WorkCover congratulates itself on getting the majority of ‘injured workers’ back to work within such a short time. But the entry of rehabilitation providers actually increased the average time off for injury by 2%. If the majority are returned more quickly. The statistics are being skewed by a poorly assessed minority who remain on programs for unconscionable periods.

Attention should be paid to whether any worker should have gone off work at all and why so many of these claims were ever made

WorkCover should not advise on who legitimately is able to assess unless it is prepared to do its research on the assessors or conduct clinical examinations and conduct due diligence. A basic degree is not enough to enter a forensic arena.

It does not matter who assesses and by what criteria if the coffers are bottomless, but will matter if the proposals for changes to WorkCover proposed by the Honourable JJ Della Bosca are to be implemented.[27]

Health problems need to be differentiated from occupational problems. Each requires a different approach.

Employers

Management must face that it has a primary responsibility for what happens in the workplace and that it will soon no longer be able to slough off responsibilities to others. Costs generated by certain kinds of stress claims in a work force need to be factored in when budgeting for manpower. Feedback loops must be reinstated if claims are triggered by the actions of the employer rather than by accidents.

People should not be insured against their own deliberate actions which knowingly harm others.

Some people deliberately harm others and cause stress claims. When this happens, cross claims might be instituted against recidivist transgressors. Cross claims against prison officers who sexually harassed women in their midst soon put an end to this practice. Can they be used to a greater extent?

No one else can be insured against the consequences of their own intentional behaviour.

Unions

The challenge for the unions is to accept that occupational problems are an industrial relations matter. Workers need informed educated shop stewards, the services of negotiators and workplace assessors.

This would involve a huge upgrading of services provided by trade unions. It would improve union membership if a worker knew if he or she was able reliably to get such services.

Legal reform

Legislating for a Daubert criterion is essential. Expert advice and expert treatment need to be based on validated scientific criteria. The taxpayer should not be asked to accept the unsupported opinions, fads and useless remedies of persons who simply have expert status.

If anything less than evidence-based practice attracts payment, then this standard will not prevail. A provision should exist for the expert to be asked to justify an opinion. There should be a mechanism for accumulating knowledge for what is evidence-based and what is faddism or quackery.

Legislators might consider imposing disciplinary penalties on careless lawyers using doctors who instigate spurious litigation.

Report writers who believe that it is their job to get as much money as possible for their patient need to be held responsible for what they do and new legislation should establish that their primary allegiance is to the court and not to the patient This can go someway towards resolving the conflict that a treating doctor faces between the patient’s heath and the claimant’s financial well being.

All certificate writers should know the rules.

New legislation needs to direct the allegiance of the therapist to the health of the patient and not to financial interests.

Lawyers should never be displaced although many attempts are made.

No one can assess their own case. However plaintiff lawyers should be given more responsibility for identifying false and frivolous claims and should be prepared to bear the costs of frivolous litigation as they do in every other jurisdiction. Experts who should be asked, as they are now in the District Court, to provide their credentials and the reference base underpinning their opinions. They should not be rewarded for giving incomplete or even false certificates.

The occupational health industry

Experts providing certificates for both sides need to be made responsible for the consequences of poor assessments. In the United Kingdom, failing to diagnose or predict a problem or degeneration can lead to a pay out from one’s Medical Defence Union.

In any new legislation, there would be room for trained mediators and workplace assessors, perhaps offering their services to managers, organisations and unions, with the proviso that they can come as soon as they are called to supplement the existing structures.

Those already involved with Workers Compensation would need to reprogram their days, to keep time free for emergency attendance at incipient industrial disputes and expect to spend less time documenting and managing their consequences.

As financial responsibility for excesses has been gradually shifted onto the government, some people think that none of this matters. As the crisis has developed, the taxpayer is footing the bill yet at the same time insurance premiums are higher than in Workers Compensation systems in other developed countries with different cultures.

The immediate challenge, at least as far as psychological injury and stress claims are concerned, is to identify who really needs urgent treatment: the worker, the law, the management or the workplace?

The Author: Dr Yolande Lucire PhD MBBS DPM FRANZCP is a medical anthropologist and a forensic psychiatrist in private practice. She researches and writes about hysteria, moral panics, junk science and civil litigation. Correspondence to lucire@ozemail.com.au

The Occasion: Garran and Baxter’s Conference, on ‘Psychological Injury’. Hilton Hotel December 1 2000.

[1]

[2]          Rational choice theory (RCT), is well explained by Jon Elster (1994) In its broadest interpretation, rational choice theory invites us to understand individual actors (which in specified circumstances may be collectives of one sort or another) as acting, or more likely interacting, in a manner such that they can be deemed to be doing the best they can for themselves, given their resources, and circumstances, as they see them’(Abell 1996).This template explains what people do (actions) to get what they want (desires), in terms of what they believe to be the case (beliefs). It examines how they explain why they did whatever they have done (reasons and conscious motives) and how they hide from themselves and others that what they want is not acceptable and cannot be openly acknowledged (unconscious motivation). RCT takes into account how people prioritise all that they want (ranking of desires into a hierarchy). This all takes place in a situation where some behaviours are permissible and some not (social norms) and people know what is considered good and what they can get away with (social values).

            Rational diagnosis is to be as free as possible from error. Rational treatment has the capability of eliminating or minimising the effects of a disease. It is also rational to expect that patients value health over illness, that iatrogenic (induced by doctors, medical institutions or cultural beliefs) or harm is to be avoided, and that pain and disability and work incapacity are undesirable and, in the terms of this theory, evils.

            The activities of both physicians and patients, their beliefs and the reasons they offered for them, and the conflicted or even perverse desires which they could not acknowledge can be examined.

            According to Elster (1994), in a rational world, actors, or in this case study, doctors and patients, would be expected to collect and consider all the relevant evidence for a course of action. In practice, the evidence a physician collects is determined by how much he really wants to know. If a doctor knows more, he might have to embark on a course of action that is not to his or her advantage. Specifically in the RSI epidemic, if treating doctors had wanted to recognise the functional disorder, they could not have continued to do what they did to patients, collectively, to generate millions of dollars worth of medical costs in pursuit of treatment-resistant complaints.

            Reasons are always conscious and occasionally glib. Reasons are based in events in the past, for example, how a person felt when he or she went to the doctor. When reasons are unconvincing and self-serving they are called rationalisations

            Motives, on the other hand are expectations about the future, and are more likely to explain actions than are reasons. A motive to punish an employer might be seen as altruistic in the hands of an activist, but the doctor cannot be permitted to involve himself in the battles of others, in a war that is, unfortunately, claiming ‘victims’. According to the Oxford English Dictionary definition, a victim includes a person destroyed or injured so that an object may be gained or a passion gratified. The use of the work ‘victim’ should alert a social scientist.

[3]         

[4]          Australian Labor Party. Statement of Accord by the Australian Labor Party and the Australian Council of Trade Unions Regarding Economic Policy, February 1983. Canberra: Australian Government Printing Service, 1983:17-19.

[5]          For example, at the Australian National University support staff to teachers and researchers were being withdrawn as administrators and academics were being supplied with computer terminals and were expected to learn to use them.

[6]          In Australia, the RSI epidemic coincided with the attempts at introducing word processing technology. However, when RSI first appeared in 1986 in England, it was at least six years after the introduction or word processing equipment, which had come in 1980. British workers had been concerned about Visual Display Units. In the US, cumulative trauma disorders did not appear until 1986 as the 'proposed strategies for dealing with the prevention of leading work-related diseases and injuries (Part 1)' were enacted. This was eight or more years after the introduction of word processing.

[7]          This concern was highlighted by an ergonomist, Brian Pearce, who had considerable experience of workplace evaluation in England. He described an American workplace as it appeared in 1986, the office of the Internal Revenue Service in Brook Haven on Long Island. Data processing operators were served by trolley and did their work attached to headphones listening to radio soaps. RSI was unknown in that workplace as the ideas did not reach it until some two or three years later. In general, improvement to conditions of persons involved in this work could have been justified in the interests of humanity and efficiency, without medicalization of unhappiness. This was successfully done in the United Kingdom to allay fears about visual display units. Turnover of staff and absenteeism are both dependent on the comfort of staff and their job satisfaction. See Pearce, B (ed) Health Hazards of VDTs? HUSAT, Loughborough. 1982. also the evidence of Mr Pearce in Supreme Court of Victoria. Cooper v Commonwealth of Australia. 1987.

[8]          Mathews J, Calabrese N. Tenosynovitis and Overuse Injuries...A plan for action. In: Melbourne: ACTU/VTHC Health and Safety Bulletin, 1981: vol 1

[9]          Mathews J, Calabrese N. ACTU Health and safety policy: prevention of repetitive strain injury. In: Health and Safety Bulletin. Victoria: ACTU-VTHC Occupational Health and Safety Unit, June 1983: 1-4. vol 29

[10]         International Statistical Classification of Diseases and Related Health Problems ICD 10. (Tenth Edition ed.) Geneva: World Health Organisation, 1992, Occupational neurosis is coded at F48.8 amongst the Somatoform disorders in the Section on Mental and Behavioural Disorders.

[11]         Lucire Y. Neurosis in the workplace. Medical Journal of Australia 1986;145(7):323-327.

[12]         Hocking B. Epidemiological data on the Australian epidemic. Medical Journal of Australia 1986;144 (April 28):500-501.

            Hocking B. Epidemiological aspects of 'repetition strain injury' in Telecom Australia. Medical Journal of Australia 1987;147(5):218-222.

[13]         Hocking opp.cit.

[14]         Companies Fight Against RSI pay rule. John Sterlicchi SMH November 20 2000.

[15]         Bell DS. 'Repetition strain injury': an iatrogenic epidemic of simulated injury. Medical Journal of Australia 1989;151(5):280-284.

[16]         Ideology and aetiology: RSI an epidemic of Craft Palsy. PhD dissertation University of NSW 1994.

[17]         Predicaments (from 100 selected by random number screen from 312 consecutively referred allegedly RSI claimants) are graphed below. As numbers were small, accurate rates are not available. However all countable stresssors in the ‘claimant’ population are occurring at many times that of the ‘person’ population.

Losses as precipitating stressors

If one looked at the information from another angle, it seemed that about 70 of the one hundred were dealing with losses. This figure was hard to quantify as some were dealing with up to four losses at once. Losses included loss (actual or threatened) of a relationship with a significant other (26), loss of working capacity of a spouse accompanied by the loss of economic power (8), threatened loss of a loved parent, child or spouse by serious, life threatening illness or their actual loss by death (24), the actual loss of their own health through causes unrelated to RSI and impending or threatened loss of employment through imminent retrenchment (more than 10).

A few other losses that were picked up were more abstract; some had lost faith in their religion, they lost ideals, they lost idealised beliefs about people close to them.

Looking at the data yet another way, it seemed that about 60 of the claimants could not have continued to work and attended to their domestic obligations. Some had become full time students having entered university on its 'disabled quota', they continued to receive 'rehabilitation allowances'. Others were fully engaged in caring for sick or disabled spouses or were caring for children without the assistance of former helpers in a situation where child care would have been uneconomic.

[18]         I refer, of course, to Mr Hawke’s election promise of 1986, that by a certain date, no Australian child would live in poverty.

[19]         Journal of Occupational Health and Safety 1985;1(1).

[20]         Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 4th ed. Washington DC: American Psychiatric Association, 1994.

[21]         There is a huge amount of litigation against experts worldwide: In Australia, the advice procured by the GIO itself concerning the value of its shares has resulted in a suit against its merchant banking experts. Another Australian case concerns an opinion given by a group of psychologists to the effect that a certain ABC identity was not appropriately suited to the job the had performed successfully for more than twenty years.

[22]         Commissioner for Government Transport v. Adamcik (1961) 106 CLR 292.

[23]         Abalos v. Australian Postal Commission (1990) 171 CLR 167 F.C. 90/44.

[24]         Daubert et al. v. Merrell Dow Pharmaceuticals Inc. 113 Supreme Court of the USA, 2786, June 28, 1993.

[25]         Foster K.R. & Huber P.W: Judging Science: Scientific Knowledge and the Federal Courts, Cambridge Massachusetts: The MIT Press, 1997.

[26]         The Bearing of Daubert on Sexual Abuse Allegations . Presented at The Australian Academy of Forensic Science, 9 February 2000. Published in The Australian Journal of Forensic Sciences, The Official Journal of the Australian Academy of Forensic Sciences. vol 32 No 2 45-57 June - December 2000.

[27]         Ministerial Statement The Hon. JJ Della Bosca 8 June 2000 page 6879 et sequi. WorkCover Scheme Review

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