Page 535 - Week 02 - Thursday, 9 March 2006
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The basic problem stems from the history of occupational health and safety and workers compensation arrangements, which has found its way into legislative structures. A key feature of those structures is the prevailing culture of presuming employer guilt at the workplace. I have spoken on this on other occasions.
Both OH&S and workers compensation arrangements take as their starting points the element of an imbalance of control which is presumed to be embedded in the employer-employee legal relationship. The implicit, but false I suggest, assumption contained within the legal relationship is that the employer is all-powerful in the workplace relationship. This is not the case, as we all know. In contrast, the employee is in most respects assumed to be witless and powerless. I have cited previously here, from my own career, first-hand examples of where clearly an employee may significantly or entirely contribute to their own injuries through measures they have taken without the knowledge of their employer, even with appropriate systems in place.
When a work injury occurs, the employer, however defined, is held to be responsible for the injury, and employees are assumed to have diminished capacity to control their work environment and, when an injury occurs, are therefore assumed to be blameless. The truth is, of course, that employers have some control, but so too do employees and many others, including unions, suppliers and government authorities, to mention a few. Of course the essence of the problem in this area is that the person paying the insurance premiums—that is, the employer, however defined—does not receive any benefit of any claim but suffers the loss resulting from a claim made by someone else. That is a fact of life.
Under normal or regular insurance, normally the person paying the premium is the person covered and is the appropriate person to receive the benefit in the event of a claim. Distorting things about how work control in fact operates and about responsibility for accidents diminishes community trust in fairness and justice of work safety. It causes people to spend time and energy trying to avoid the injustices of laws. I suggest it reduces the effectiveness of public policies targeting safe work practices.
WorkCover authorities claim they investigate fraud—and I am sure they do—but in practice, however, the system is often rorted. It is seen by many as a supplement to social welfare. Endemically, workers who may have suffered an injury out of work will claim the injury as work related. There are many examples where that has occurred over time. One would be naive to assume that it has not gone on.
The system assumes that, when a claimant alleges the injury was work related, the worker is correct. The onus to prove the injury was not work related effectively falls on the employer, an almost impossible task, and sometimes the insurers ultimately. And to make matters worse, some actions of the medical profession are complicit in fraudulent claims. Most medical professionals charge more for a workers compensation consultation than for other consultations. I really do not sympathise with that conduct.
I drew this issue about doctors to the attention of the national media some years ago. I was aware of some statements coming from medicos to justify every range of ailment to support sick claims which people were more than happy to shift back onto the
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