Injured worker’s boss does not want him to come back to work

A few days ago we received the story from injured worker “G”, who has suffered agonising arm and shoulder injuries from doing repetitive computer work and find himself in an -unfortunately all too common situation – where his boss “is just too busy” to “deal with his return to work plan”. His boss makes no effort to contact him and it looks like they do not want him back at work. His elusive case manager is of not much help either…

Injured worker’s boss does not want him to come back to work

Hi, I’ve been reading the horrific stories on this site and thought it might relieve some of my stress if I shared my (tame in comparison) situation.

I’ve been working as a trade qualified graphic designer for 17 years (I’m 33 now) and for the past 10 years have been a specialist in custom software which isn’t found in many places worldwide and I have been top of my field for a while and heavily head hunted for my skills.

A year and a half ago a small start up company begged me to come work with them, I joined against my families warnings amid many promises from the company which never eventuated.

The pain in my right arm started just before Xmas last year after months of 10 hour days without any breaks for lunch or much else.

The work itself is very repetitive and not at all considered regular computer use. I went to the doctor about the pain in my arm who gave me the workcover medical certificate without me asking for one. Due to the nature of my work I was not able to take the full medical certificate time off work and handed the form in to my boss when I did come back. No one ever explained to me what I was supposed to with the form.

I lived and worked with the pain for months, seeing Physio and acupuncture on my own accord and switched to using the mouse with my left arm due to the pain in my right, eventually my left arm became  agonising as well and I could no longer do my job using the computer.

I went to the doctor again who gave me a new workcover medical certificate with restricted work duties but this time I called workcover myself to start a claim.

I asked my boss for a non computer role in the company to which he asked me to resign.

A month after my claim was accepted I was in constant pain which no amount of painkillers would relieve so I saw the doctor again who gave me two week off work.

I received heavy Physio and exercise with no computer use but was still in significant pain.

I’m sure you all know how difficult it is to sleep with constant pain.

The doctor gave me an additional two weeks off work then a gradual return to work with 2 hours a day the first week, 4 hours a day the second week back at work.

The problem is in the month I’ve had off work my boss has hired 6 new employees who could potentially cover my role and my boss has been extremely no responsive to me contacting him.
He has told me he is too busy and not to come in to work despite the doctors recommendations.

I am not sure what he will say when he finally does answer my call. I have told workcover my boss didn’t want me back and they said I was sill covered since the order came from work.

I have had a couple of workcover case managers since this began and only spoken to my current case manager once, all other times she has been out of reach.

I just don’t know what I’m supposed to do?
 TL:DR – 17 years computer use, new job with excessive working conditions, arms, shoulders, back and neck spasmed and in constant pain, doctor only gives me 1 month off work with gradual return, boss doesn’t want me back, still in pain.

I’d appreciate any advice or similar stories. Thanks

Dear G, thank you so much for sharing your story. Unfortunately it is all too common for employers to “refuse” to employ their own injured workers.

Returning to work is probably one of the most difficult areas you will have to deal with when you are injured at work. Many employers are excellent in getting their injured workers back to work but unfortunately, others are very poor.

These employers are often intolerant of injured workers or provide unsuitable or humiliating work after injury.
If you are able to work, returning to the right kind of job can be important for your future. Your employer is required to provide you with equivalent work if you recover fully or suitable employment if you do not. If an employer fails to provide appropriate work it can be an offence under the WorkCover legislation.

The amount of time the employer has a duty of care for you (that is, is legally obliged to provide you with suitable duties) depends on the state you are located in. In Victoria for example it is 12 months from the date of injury. However there are some clauses in the legislation, for example if the employer can justify that providing an injured worker with “suitable duties” (which they do not have) would cause them unjust hardship they may be exempt. In that case, the workcover insurer has to assist you with obtaining new suitable employment. They do this by allocating you a rehab provider in the first instance.

We would therefore highly recommend to you that you ask your case manager to refer you to a rehab service provider – either to help you with your RTW with your current employer, or failing that to help you with seeking alternate suitable work, whilst ensuring you have appropriate ergonomic support in the workplace.

In order to have a better chance at negotiate a “satisfactory” return to work we recommend that:

  • You discuss your condition with your treating medical practitioners so that you have a clear understanding of what activities you can and cannot do.
  • Discuss with your doctor the need for a graduated return to work plan.
  • Contact your employer’s rehabilitation provider and discuss your restrictions with them. You should also discuss the possibility of retraining with them. If you know of an alternative job that you think you can do at work, tell them about it.
  • Your WorkCover Claims Agent will be able to give you the details of your employer’s rehabilitation provider. It is a good idea to use a rehabilitation provider as a buffer between you and your employer when negotiating the return to work.
  • If you return to work, make sure that you regularly consult with your doctor to ensure that you are able to cope and that any work you are doing is not causing permanent damage to your condition.
  • Ensure that your rehabilitation provider regularly monitors your return to work so that adjustments can be made if necessary
  • Involve your union

Does my employer have to hold my job open?

The Victorian WorkCover legislation requires your employer to provide you with suitable employment (if you remain partially incapacitated) or equivalent employment (if you have recovered) within the first 12 months of your absence from work. Technically the failure to offer this employment is an offence against the WorkCover legislation and your employer can be prosecuted for breaching the section.

Only WorkCover can launch a prosecution and if you have not been offered suitable employment you should report the matter to the WorkCover compliance branch by phoning 96411555 .

Unfortunately this part of the WorkCover legislation it is quite toothless as prosecutions by WorkCover are very rare and an employer can escape any penalty if they can show that offering suitable work would cause them ‘ unjustifiable hardship’ (another “loose term”).

Can I be sacked while on WorkCover?

There is no real specific law that prevents an employer sacking you whilst you are on WorkCover.

It is however an offence for an employer to sack you solely because you have made a claim.

Sacking you whilst you are on WorkCover (or even after you have returned to work), may be an unfair dismissal or disability discrimination. If you are sacked whilst on WorkCover, your payments will continue provided you remain incapacitated.

 

In this case an injured worker tells the story of how she was abused, ill-treated, refused to allow to return to work after surgery despite a certificate of capacity and ultimately unlawfully sacked.

 

Shortlink: http://wp.me/p1MA9G-2MT

 

 



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3 Responses to “Injured worker’s boss does not want him to come back to work”

  1. Just to follow up with this, I am the injured worker any my boss just sent me an email with redundancy.
    I’m in Qld and work cover said that they’d get return to work training to contact me.
    The business is a small startup and expanding but what are my options now?
    Thanks

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    • It is likely that your insurer will appoint a rehab service provider to you to assist you with things like retraining and seeking new suitable employment under the NES (new employment scheme). You will also undoubtedly be sent to a Vocational assessment with a view to see if you would “benefit” from retraining. In any case workcover should continue your weekly payments until you have a new job.
      You should be able to find all this information on the QLD workcover website and in the legislation (see our resource page)

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