In Australia and elsewhere, for example, the word “tort” now refers to a civil wrong, other than a breach of contract, for which a plaintiff may claim compensation if they are able to prove that they have been wronged. In fact, “tort” is a French word, meaning “wrong”, derived from the Latin word “torquere” meaning “turn, twist, wring, distort”.

Although tort law still plays an important role in the Australian legal system, workers’ compensation has long been covered under no-fault statutory law, circumventing the need to prove that you have been wronged by your employer in order to qualify for payments. The rationale behind no-fault workers’ compensation systems is that they reduce the distortions that often resulted from tort law: the hostility and blame that compromised recovery and positioned workers and employers as adversaries. No-fault compensation acknowledges that the last thing you need after suffering harm at work is to be further turned, twisted or wrung.

Robert Guthrie and Stephen Monterosso recently wrote an article for the IAIABC Journal (International Association of Industrial Accident Boards & Commissions), entitled “Preventing Further Harm to the Harmed—Towards a Therapeutic Approach to Workers’ Compensation”.

This article points out that, while ”First, do no harm” is the cornerstone of medical ethics, it doesn't seem to be an underlying principle of any worker compensation system. Guthrie and Monterosso do not recommend a return to tort law, but their attitude to Australia’s workers’ comp systems does bring to mind another old medical adage: “Sometimes the cure is worse than the ill.”

Guthrie and Monterosso suggest that “bureaucratic claims processes, over-zealous claims management and lack of good faith in claims handling” are harming our workers’ comp recipients.

Claimants face complex claims procedures, medico-legal evaluations such as circumstance reports or assessments by independent doctors, dispute processes, and bureaucratic red tape (for example, weekly claims forms). Guthrie and Menterosso argue that the stress of facing a system of enormous complexity, coupled with an underlying feeling that they are not being believed, hurts workers.

“Well what does it matter”, you might say? “The worker is being paid, their treatment's being covered and potentially they're getting a lump sum payment.”

Yet the “harm to the harmed” that Guthrie and Monterosso discuss can be severe. Marriage break-ups, depression, suicide and withdrawal from social life are some of the “symptoms” of sick compensation systems. People’s lives may quite literally be broken by their experiences on “compo”.

On top of the ethical case for preventing such unnecessary harm, there are also pragmatic reasons to do so. At the heart of complex return to work cases is the notion of discretionary effort.

If someone with a sore back is asked to return to work when she's in ongoing pain, the likelihood of her doing so increases substantially if she feels her employer will look after her, and that those managing her claim are doing so with goodwill. If she understands the path forward and feels that they're doing the right thing by her, she's much more likely do the right thing by them and return to work, despite her ongoing pain.

In contrast, when an employee is bewildered, frustrated or feels they're not being believed, the logical response is to either feel the need to prove they have a problem or to become disengaged, angry and uncooperative.

The by-line of return to work matters is the power of partnerships. A bureaucratic process that leaves an employee stigmatised and frustrated is a clear way of destroying any possible partnership.

But how does one create return to work partnerships? Claims officers are often snowed under with work, trying to juggle the needs of the employee, the employer, and the system. A process driven system were they need to tick all the right boxes distracts them from interacting with and focusing on the worker.

If we're to create workers’ compensation systems that do no harm to the harmed, we need the top of the organisations—i.e. WorkCover boards and senior managers—to lead the process.

This is not going to happen while our workers’ compensation authorities are fixated on liabilities and the focus is financial outcomes.

Workers should not, as Guthrie and Monterosso say they do, find workers’ compensation systems to be “cumbersome, frustrating and demeaning”. Australia moved away from tort law to no-fault compensation in order to protect workers from harm, and employers from unnecessary costs. But our current system is a distortion—a turning, twisting and wringing—of this laudable intent.