In 2010 the Victorian Accident Compensation Act 1985 was amended to change the process by which the weekly payments to an injured worker who unreasonably failed to return to work could be terminated.
The previous one step process was made it more complicated with the introduction of a 3 or 4 step process.
The following recent Magistrates’ Court decision of Cavanagh v CSA (Garnett S, 2 August 2013) illustrates employers can still rely on the new return to work provisions to terminate payments to injured workers who unreasonably fail to return to work. This case also highlights that “unreasonable” includes being certified not ready for work yet by your treating psychologist – WTF!
Unreasonably failing to return to work
The injured worker had an accepted claim for injury to the right knee occurring in March 2011, for which he underwent surgery twice.
The injured workers employer offered the injured worker modified duties in accordance with a return to work plan in May 2012, which he (allegedly) refused to attempt.
While the injured worker and his treating doctors believed he was physically capable of the duties, he was unfit for work for psychological reasons.
Following his refusal to return to work, in accordance with s 205 of the Act, the injured worker was issued with a warning notice, followed by a suspension notice, and then finally a termination notice.
The Court ultimately found the principal reason the injured worker failed to return to work was because he was angry and resentful towards the employer, with those sentiments caused by delays in compensation payments being made!!
It applied the test set out in the previous Supreme Court decision of T&G Industries Pty Ltd v Randjelovic  VSC 316 and found, objectively, the injured worker had failed to make reasonable efforts to return to work as his refusal was caused by his attitude towards his employer and not his compensable injuries.
The Court also considered it was bound by a previous Medical Panel opinion which found the plaintiff had not suffered a compensable psychiatric condition (as per Kocak v Wingfoot  VSCA 259 (now overturned)).
As an aside, the Court did not place any great significance on the fact the injured worker was not provided with a written copy of the return to work plan prior to the day he was meant to commence work – WTF!
So much for the stigma inflicted upon injured workers and the disbelief so many of us face!
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