Most workplace injuries involve medical treatment and rehabilitation programs that are provided to the injured worker over many months and sometimes years. In each workers’ compensation claim it is hoped that the injured worker responds positively to their treatment and over time, regains the ability to work. Once an injured worker regains some capacity for work, they must participate in a rehabilitation return to work program, that usually involves starting with an appropriate and suitable part time work trial gradually building up hours in either the pre-accident job or an alternative lighter job. All rehabilitation work trials must be approved by the worker’s GP. Importantly, it is not a matter for the employer or insurer to determine when or how a worker can or should go back to work. This is a medical decision which is made usually by the worker’s GP or treating specialist.
Over the years, Separovic Injury Lawyers have seen return to work programs become a major source of conflict between injured workers, the employer and their insurers. These conflicts often arise where the worker is pressured to return to work before they are physically or mentally ready to do so. Often in these cases, the injured worker may still be suffering from pain or discomfort caused by the work injury. Alternatively, the employee could be in a situation where the work trial is aggravating their injury, but they think they are legally obliged to push on, based on what they are being told by the insurer, employer or rehabilitation provider.
Generally, the employer or their insurer is keen to have the worker return to work as soon as possible after the accident and thereby be in a position to stop paying weekly payments of compensation as soon as possible.
Of course by returning to work before their injuries have resolved, workers often suffer from aggravations of their initial injury or worse still can suffer new injuries due to favouring their original injury. Either of these entirely avoidable circumstances, causes additional pain, suffering, stress, delay and psychological and physical damage to the worker. Separovic Injury Lawyers takes a very strong position regarding this issue and will use every legal measure available to ensure that the worker is not pushed back to work before they are properly medically certified to do so and that their medical and legal position is not being jeopardised in anyway, due to pressure tactics coming from the insurer or employer.
In every claim, the worker has a dedicated specific fund or allowance which is to be used solely for rehabilitation purposes. This allowance is currently $16,518.00 and is usually increased by a small amount on 1 July each year.
How is my return to work program managed and who organises it?
Section 155B of the Workers’ Compensation and Injury Management Act 1981 (“The Act”) requires each employer to establish an Injury Management System in respect of their employees. Each Injury Management System must comply with WorkCover WA’s Code of Practice for Injury Management. The Workers’ Compensation Code of Practice (Injury Management) 2005 (“The Code”) applies generally to Western Australian employers and, in more specific terms, if the employer has a worker that has been injured at work and has lost some capacity for work due to injury.
WorkCover WA notes in their advice to injured employees that the aim of an Injury Management System is to “assist an injured worker to make an early recovery and safe return to their work”. It is a legal requirement that the employer’s Injury Management System is clearly documented and that an Injury Management Coordinator be designated by the employer. The employer must provide an employee with a copy of the Injury Manager System document if requested. The injury Management Coordinator’s role is to maintain and manage the operations and activities of the Injury Management System. In most cases the Injury Management Coordinator will act as the key contact point for the injured worker and assist the injured worker in dealing with the employer regarding their workers’ compensation claim and return to work program.
Section 155C of the Act deals with the provision of a return to work program for injured workers and notes that an employer:
must ensure that a return to work program is established for the worker as soon as practicable after either of the following occurs—
(a) the worker’s treating medical practitioner advises the employer in writing that a return to work program should be established for the worker;
(b) the worker’s treating medical practitioner signs a medical certificate to the effect that the worker has a total or partial capacity to return to work.
As a claimant progresses through their workers’ compensation claim their GP should provide advice on treatment and refer the worker to relevant specialist treatment programs. The GP oversees the worker’s treatment regime, makes adjustments where necessary and periodically, issues a Progress Certificate of Capacity. The Progress Certificate of Capacity provides details of any ongoing treatment plans and explains whether the worker has any capacity to return to work. The Progress Certificate of Capacity plays an important role in helping to communicate the employee’s status to the employer, their insurer, rehabilitation agents and other medical practitioners. As explained above in Section 155C of the Act once the worker has some capacity to return to work the employer must provide a suitable return to work program.
Unfortunately, in our experience many Western Australian employers do not comply with the Code and effective Injury Management Systems are not in place at a workplace level. This often leaves the injured worker in a situation where they are unsure or confused about who should be assisting them with their return to work program. Issues attached to return to work programs can be a cause for great conflict between workers, their employers and their insurers. We strongly recommend that you obtain specialist plaintiff injury law advice before these issues have an opportunity to arise.
What does a return to work program have to include?
The Act is particularly unhelpful in defining what a ‘return to work program’ is and simply notes that it is a program “established under Section 155B” of the Act.
Although similarly light in detail, Part 3, Section 8 of the Code helps to explain what should be included in a return to work program. Here, Section 8(1) of the Code notes that a return to work program should be clearly recorded in a written document and include:
(a) the names of the injured worker and the employer, and any other details needed to identify them;
(b) a description of the goal of the program;
(c) a list of the action that has to be taken to enable the worker to return to work, identifying who has to take each action; and
(d) a statement as to whether the worker agrees with the content of the program.
It should be noted that nothing in the Act provides clarification as to whether employees can participate in a return to work program with an employer that is different to the employer at which the worker suffered the workplace injury and may still be employed by.
WorkCover WA does not play an active role in return to work programs as these are typically organised by the employee, the employer, their insurer, or a Workplace Rehabilitation Provider. Section 155E of the Act, does, however, explain that WorkCover WA is empowered to form an opinion “that a worker’s injury should be reviewed to determine whether a return to work program should be established for the worker”. WorkCover WA is then able to request that the worker undergoes a review and if it is determined that the worker has some capacity for work then a return to work program should be provided pursuant to Section 155C of the Act.
The Act does not specifically deal with situations where a worker is re-injured or suffers a different injury while participating in a return to work program. Common law fortunately provides some guidance on these issues. Here for example, in the case of Spotless Services v Covic (WA/C17-2008, 30 September 2008, unreported) it was held that an injury sustained during a return to work program is prima facie compensable.
Section 73 of the Act deals with the legal complications attached to the concepts of what a “fresh disability” and a “recurrence of an old disability” might be. Here, in the case of F & T Grassi v Ellendale Estate Pty Ltd [1985] WAR 294 Burt CJ held that:
Under s 73 of the Act, the concepts ‘a recurrence’ and ‘a fresh disability’ are, I think mutually exclusive. It is one or the other. The board, to make an order under subs (5) of the section must find that ‘it was a recurrence’ and that it ‘was not a fresh disability’. If there is a fresh disability, that is to say a fresh personal injury by accident, then liability to pay compensation cannot be shifted and it remains with the employer of the worker at the time of the latest disability.
Put simply, this means that if a worker suffers a new injury during a return to work program at a different employer, a claim for workers’ compensation could be made with the employer at which the new injury occurred. This issue is, however, arguable, where for example, in the case of Ngoc Hung Ta v B & E Poultry Ltd [2009] NSWWCCPD 28 it was held that the worker had no contract of employment with the other employer as the work trial was regarded as something other than a contract of employment.
WorkCover WA maintains a list of approved Workplace Rehabilitation Providers. These providers can provide a range of different support services to the employer and the injured worker. Workplace Rehabilitation Providers must be approved by WorkCover WA and are often occupational therapists, physiotherapists or psychologists.
Workplace Rehabilitation Providers try to remove any physical, psychological or workplace impediments that may otherwise dissuade or stop an injured worker from returning to some form of work.
A Workplace Rehabilitation Provider can help the worker and the employer if it is proving difficult to find appropriate duties for the worker to complete. A written agreement between the worker, their employer and their doctor must be signed before a Workplace Rehabilitation Provider can start providing support. Please note that it is often common for the workers’ compensation insurer to act on the employer’s behalf in regard to the appointment of, and liaison with, a Workplace Rehabilitation Provider.
Upon appointment a Workplace Rehabilitation Provider will undertake an initial assessment of the injured worker and then discuss any initial findings with the worker and their employer. The Workplace Rehabilitation Provider should develop, maintain and manage a service delivery plan and share this information with the worker and the employer.
The injured worker has the right but is very rarely informed of this fact by the employer or insurer that they can chose their own Rehabilitation Provider, registered by WorkCover WA. Workcover WA maintains a very helpful online registry of all approved Workplace Rehabilitation Providers. Workcover WA also operates a service called WorkCover WA Online through which injured workers can engage approved Workplace Rehabilitation Providers.
If there is a dispute about a return to work program between the employee, the employer or their insurer, an application seeking an order from an arbitrator, can be made at WorkCover WA. Section 156B(2) of the Act notes that an arbitrator can order an injured worker to engage in a return to work program if they are satisfied that:
(a) a return to work program is required under section 155C(1) to be established for the worker; and
(b) the worker, without reasonable excuse, refuses or has failed to participate in a return to work program; and
(c) the establishment, content and implementation of the return to work program are, or will be, in accordance with the code.
It should also be understood that an arbitrator can order a employee to participate in a return to work program other than the program proposed by the party seeking the order from the arbitrator.
In recent years Separovic Injury Lawyers have noticed a general increase in the number of workers that have had negative experiences during their return to work programs. Some of these issues include workers being rushed back to work before they are ready, requiring workers to complete duties that are dangerous or detrimental to the worker’s recovery or engaging in programs that are poorly managed and not adequately documented.
We have a team of very caring, compassionate and down to earth legal professionals that will monitor your return to work program and ensure that it assists in achieving your compensation claim objectives. We have provided expert legal assistance to workers that have suffered through horrible return to work programs and it is very satisfying to resolve these issues. Don’t delay and call us now for free, no obligation legal advice.