The SRC Report: How an Early Intervention Policy Can Be the Key to Employee Recovery

Administrative Law and Governance, Commonwealth Compensation

minutes reading time

DATE PUBLISHED: April 20, 2021

ATHENA CAINS: Welcome everybody, to McInnes Wilson Lawyer's inaugural SRC Report.

I'm Athena Cains, Principal, and I'm joined today by Abraham Ghaleb, Senior Associate. We're from our Comcare team from McInnes Wilson Lawyers. Today, we will start by discussing the foundations of an effective early intervention policy for the departments looking to find other avenues to support injured workers apart from Workers' Compensation.

But first, Abe, tell me, what is the SRC Act?

Early intervention policies factsheet

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ABE GHALEB: Well, the SRC Act is the Safety Rehabilitation and Compensation Act of 1988. It's the legislation that established the Workers' Compensation Scheme covering Commonwealth employees and the employees of licensed corporations. Think Telstra, Virgin Australia, Commonwealth Bank, ACT government - they're all licensees under this scheme.

And, as the name implies, the legislation has been in place since 1988, but there's been legislation specific to Commonwealth government employees since 1912.

ATHENA CAINS: Abe, I always find the SRC Act interesting because the first word in the title is safety, but it doesn't really touch on safety - and that's the first line of defence for employees who are tackling work health safety issues.

Rehabilitation comes second. However, ironically, the rehabilitation provisions (of which there are only two) don't come into play unless there is an accepted Workers' Compensation claim.

And last but not least is compensation, which most of the Act focuses on.

So, where do early intervention policies fit into the SRC Act? And why should you have one?

The reason why is simple mathematics. Every accepted Workers' Compensation claim will increase your agency's premium - by how much is a complex equation. However, there can be no doubt that an agency will pay more if a claim is accepted than if no claim was ever made.

Further to this, it takes time for a claim to be accepted.

Apart from the fact that many injured workers don't lodge a claim until a short while after the injury, the decision-making process itself takes time - usually at least one month.

In that time, many employees don't seek treatment and are off work.

We all know that the longer it takes to obtain treatment and the longer an employee's off work, the harder the return to work is. The advantage to an early intervention policy is that the cost of some treatment can be covered quickly, and short periods of miscellaneous leave with pay might also be covered. The combination of the two will certainly assist in the employee's return to work and will also reassure the employee that they are valued by their employer, as well as an acknowledgement that the employee should not have to bear the cost of injuries they sustained at work.

Believe me when I say that this can be a significant issue to many employees and their families - that is why you might have an early intervention policy.

The next step is: what is an early intervention policy?

Well, that's pretty easy to answer, and I'm sure you're aware of many departments that have them.

"An early intervention program or policy is a systemic and departmental approved process for the handling of new and emerging symptoms of ill health, injury, and illness."

It aims to mitigate the effect of those conditions on employees to either support them to remain in the workplace or support them to return to work as soon as possible.

Usually, an early intervention policy would be managed by the HR WHS teams and would include a capped amount of money for out-of-pocket expenses associated with seeing a GP, a psychologist, or a physiotherapist. Sometimes they can consist of a capped amount for miscellaneous leave with pay in certain circumstances.

Some of the more sophisticated early intervention policies and programs might include mandatory training on lifting, a library of ergonomic equipment (so employees don't have to wait for their sit-stand desk or foot-rest), and timely workstation assessments.

Concerning psychological issues, it is far harder to put in place early intervention policies that treat the cause rather than triage the symptoms.

Of course, there is always EAP.

The only different one that I have come up with or recommended is coaching for employees going through performance management and coaching for employees who are undertaking the performance management.

Abe and I would really love to hear your ideas on that, though.

Do you have any ideas on what early intervention could look like for psychological conditions that actually prevents the psychological conditions from arising in the first place?

That brings us to 'how'. Abe, what are your thoughts on how we might build an early intervention policy?

ABE GHALEB: Well, I think the first thing to note is while there are general recommendations that all organisations can undertake, there's really no one size fits all approach. And that's because every organisation has its own specific work health and safety risk profile.

Let me take you through an extreme example - the risks which an employee from the ATO may encounter and which might be ergonomically based, they're going to be very different risks which employee of, say, Linfox, would experience because they're dealing with the handling and transportation of freight.

So, the first thing I would recommend is ensuring that your organisation has completed their work health and safety risk profile, and - if it has been done - that it's been kept up to date because there's really no point diverting resources and engaging in early intervention for risks, which aren't actually affecting the staff.

For anyone who's listening to this podcast, they'll probably know that generally speaking, there are two forms of injury - a physical injury or psychological injury. And while those can sometimes intertwine, and one might cause another, I'll leave that aspect of it for another day. 

So you've got your work health and safety risk profile. You know what risks are most prevalent and what you're doing to avoid those risks. But we also know that it's just impossible to eliminate injuries altogether. So, like Athena has touched on, the real issue is how do we get this worker back on their feet in a way which effectively causes the least disruption to that worker, but also the organisation. 

The first step is giving proper consideration to how you get someone who's had an accident back on their feet and what your organisation is comfortable implementing.

ATHENA CAINS: I think that's right, Abe, and I think it's important to stress that this time that a department should not be trying to reinvent the wheel. What an organisation should be doing is putting realistic, practical solutions in place that fit the majority of workers, and not those not outlying workers and outline conditions that we all know can be incredibly difficult to manage.

ABE GHALEB: Yeah, that's exactly right. So if we're talking about a physical injury sustained in the workplace or thought to be caused in the workplace, you might offer, like Athena's mentioned, miscellaneous leave with pay so that the person can attend their GP. And then maybe you want to consider providing them with a few extra miscellaneous leave with pay hours or days, so they can actually then go and attend physiotherapy, or maybe even just take a bit of time off work to recoup. 

You might want to undertake a work safety assessment to make sure that the injury is a one-off and isn't going to affect other staff because, as Athena has just said, you're not trying to hit the majority of staff. You're not trying to get every single staff member because it's effectively impossible. So you want to think about what are there reasonable adjustments or supports you can introduce to help?

I'd say there's a limit though.

"What you don't want to be doing in an early intervention policy is expanding into what is the realm of workers' compensation." 

And that's because the point of early intervention isn't to determine whether that employee has actually sustained an injury or even whether that injury is work-related. The point is to get that employee back to 100% and back to work because, generally speaking, that's actually the best outcome for them, for the employer. 

It's really the best outcome for everyone. 

What we often see is that an employee suffers from a relatively innocuous injury, maybe a sprain, or perhaps they had some inflammation, but because there's a delay in the treatment, because that employee is taking time off work, or maybe they say they can't afford physiotherapy, these small injuries sometimes turn into something more serious. 

There's also a secondary and not often thought of issue in these circumstances, and it's this: Employees in circumstances who don't feel that their employers are supportive of them, at least anecdotally, but certainly in my view, seem to have worse outcomes. And it takes longer for them to return to work. 

"Employees in circumstances who don't feel that their employers are supportive of them... seem to have worse outcomes. And it takes longer for them to return to work."

In some cases, it causes resentment, and that mainly occurs when that injured worker believes they've suffered a work injury. They think the solution to that injury is pretty easy or even cheap in terms of the treatment, and they're getting it, again, in their opinion, pushback from their employer. 

So I guess what we're suggesting is not that there's a blanket support for all injuries. We understand that the nature of some injuries is contentious. Some people are going to seek to exploit benefits for personal gain. And what's appropriate early intervention in one organisation is not necessarily appropriate in another. So it's something that your organisation needs to determine for itself. 

Still, it's been my experience that these early interventions provide better long-term outcomes in a more cost-effective way. Did you want to add anything there?

ATHENA CAINS: Only to say how many of our contentious workers' compensation matters that we have in the AAT have had early intervention applied at the start. 

None is the answer.

ABE GHALEB: Alright. Let's then look at some psychological injuries because they're really more often than not the difficult ones. There's often competing factors as to their causation. They often involve more people than just the individual employee concerned. It can affect the team's morale, but for those same reasons, it's even more important that early intervention is provided. 

And again, that can include paid GP visits or paid counselling sessions with a psychologist or a psychiatrist. But I would suggest that first and foremost is the Employee Assistance Program. It's there, it's great, and it should be utilised.

But it's not enough to simply offer EAP and then consider that the job is done. You might've experienced it yourself or received feedback about EAP because sometimes it can get a bit of a bad rep. It makes it really important that you monitor its performance.

There's no point in having it if it doesn't actually help anyone. So another consideration may be whether you can offer the employee a temporary placement in another work area. Perhaps you can offer them work with a different supervisor, or particularly in this COVID-19 world, give consideration to whether that employee can actually complete their work from home for a little while. 

That again is a little more serious in its implementation, but what's important to remember with early intervention is that the goal is ensuring:

  1. firstly, that the employee is safe,
  2. second, that they're getting help, and
  3. third, and if possible, that person is able to return to work. 

I accept that that last point sounds a little callous, but it's not meant to.

Again, and this is for appropriate cases only, for some people, worse outcomes are achieved if there's no support behind them - if they're spending all their time focusing or ruminating on the issue or their injury and the idea that all workers should be avoiding the workplace at all costs, it's just antiquated. It's just not true. 

So if the employer can help that person continue to work in a safe environment, then that can show that the employer cares about them, shows that they're interested in their welfare. Those behaviours actually assist, not hinder that employee.

ATHENA CAINS: Yes, Abe. I think that's all essential stuff for employers, but I guess one of the things that comes up when I'm talking to departments about early intervention policies is whether or not leave should be reimbursed. And I know lots of departments don't reimburse some leave under miscellaneous leave with pay. 

So when would an organisation consider that leave might be appropriate, and that is for both physical or psychological injuries, Abe?

ABE GHALEB: Look, I really think that miscellaneous leave with pay is something that an organisation should absolutely be offering in context. And I would recommend that if you can provide, say, miscellaneous leave with pay for up to, say, three days per year for these kinds of 'non-serious injuries', then that's a really good idea. 

The consideration as to whether that form of leave is determined as appropriate is by taking, I think, a common-sense approach to the injury and thinking whether "if this person made a claim for workers' compensation, is it likely to be accepted?" And if the answer is "probably", you should be giving them miscellaneous leave with pay, again, for up to three days. 

If that worker, though, is suffering from a more serious injury and the organisation thinks, okay, well, let's say this worker might require two weeks of leave or more because of this injury, then it's probably more appropriate that the miscellaneous leave with pay isn't offered. And instead, that worker is encouraged to make a claim for compensation. 

What do you think Athena?

ATHENA CAINS: Absolutely, Abe. The provision on miscellaneous leave with pay is a fair entitlement that most departments have the ability to provide under their relevant EAs or other instruments that they can use to manage their employees. 

I think that some caution is required. 

I would prefer that an early intervention policy has a little bit of a process for making those decisions and that the delegate who makes those decisions is similar or in the same area, probably in that work health safety space, because we don't want to set up a situation where this is a blanket entitlement for all employees and add an extra three days personal leave. 

That could set up some issues down the track when you're renegotiating your employment agreements.

"But I think by the same token, a small amount of leave around the start of an injury as an early intervention can make the world of difference to a person's attitude to their employment and their attitude to their injury as well."

ABE GHALEB: Yeah, I think so. And I also think that by giving the employee that kind of benefit where you're saying "well, take a couple of days off, get back on your feet;" I think it really shows that both parties are working towards the same goal - and that is getting the employee back to 100% and getting back to work. And I think, again, as you said, that makes a big, big difference to people's outcomes.

ATHENA CAINS: And as we've both said, we recognise that this model won't suit every employee too. So this is for the majority of employees. 

I think following on from that point, we've got the miscellaneous leave with pay, but if there's an indication that a worker requires medication or surgery, or essentially some form of treatment, other than the usual GP, physiotherapy or, or psychologist, then in our view, the employer should not be accepting that treatment. 

It is just too risky for an employer to be paying for those types of treatment without proper consideration. And again, if those treatments required, then it's more properly something that should be dealt with through a workers' compensation claim.

ABE GHALEB: So with that in mind, let's briefly talk about your early intervention policy. And these documents are very often written some time ago. They're not really examined or updated too often. So if that is the case, it's definitely worth dusting it off, giving it another read. 

I would say the type of thing that you're looking for firstly is: does it make sense to you when you're reading it? 

And, probably more importantly, is it going to make sense to your average worker who's probably never been in this situation before and is already dealing with the stress of this potential injury? 

  • Assuming it does make sense, does it explain what that injured worker is required to do, what they can expect in return? 
  • Can they expect there to be questions? 
  • Is there going to be an investigation? 
  • How do they seek medical treatment? 
  • What can they receive?
  • Who's going to make the decision? 
  • Is there a right of review? 
  • And if there is a subsequent workers' compensation claim, what happens then? 

Because it's probably worth stating, and I think it's of great importance that you make it clear, that while the organisation is trying to help that worker, they can still make a claim for workers' compensationYou just have to be careful that you're not suggesting that this early intervention policy supersedes or aggregates their entitlements under the workers' compensation, because again, that's not what you're trying to do. You're just trying to give your employees the earliest possible opportunity to get better.

ATHENA CAINS: Well, that's all excellent, Abe, and lots of fantastic words there, but how could departments get started if they don't have an early intervention policy?

ABE GHALEB: That's probably a fair question. I think:

  1. firstly, if you can, see if you can obtain a copy of an early intervention policy from another department. There's absolutely no need to reinvent the wheel with these things - and if there's already a document you can jump off from, then I would encourage you to do that.
  2. If not, what I would say is gather your existing policies together.
  3. Now, give them consideration to whether they can be consolidated for the benefit of an early intervention policy. Consider what's worked in the past and what doesn't.
  4. And finally, sit down and give proper consideration to what you want to achieve. 

I'd say begin workshopping that with your WHS HR team and start putting that kind of policy together as to what you want to send. 

So, Athena, that was our first topic. What's going to be in the next episode of the SRC report? 

ATHENA CAINS: Thank you, Abe. Our next SRC report is going to focus on rehabilitation. I'll be joined by Sama Khan, an Associate from the Comcare team.

So please join us - that will be in about two weeks time. Please feel free to include comments or topics that you would like us to cover or any ideas that you have about early intervention because I'm sure there's plenty of knowledge out there with our clients and in all the WHS areas in departments and amazing results being achieved for employees all over the place. So please, share your success and keep in touch. 

Thank you so much, Abe.

ABE GHALEB: Thank you.

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