In this SA workcover legal matter, an injured worker was submitted to no less than thirty return to work plans! Neither the injured worker nor his treating doctor were given notice of Return to Work Plan 30 before it was introduced and, this, understandably was the “the final straw” for the injured worker. The SA Tribunal found that the 30-th RTW plan aggravated the injured worker’s psychological condition.
As injured workers know, a return-to-work plan must be put forward to an injured worker and his/her treating doctor before it can (or is) formally introduced.
This is exactly what the SA Workcover Tribunal found, in finding the injured worker’s employer— and of course the workcover insurer (and allies) — implemented a (30th) return to work plan with “undue haste”, which aggravated his psychological injury.
Background of the workcover matter
In September 2010, a parking inspector (Corporation of the City of Adelaide) was riding a motorcycle while undertaking his duties when he abruptly had to brake to avoid an accident and suffered a back injury for which liability was accepted.
The injured inspector undertook no less than 29 rehabilitation and return to work plans, designed and implemented in an attempt to accommodate his ongoing back pain. The 29th RTW plan required the injured worker to work 4 hours a day.
About one year later, in August 2011, the injured worker’s employer (the “rehab consultant’) started to plan for the injured worker to gradually increase his hours, notwithstanding that the injured worker’s treating doctor advised that his current physical restrictions were “likely to be permanent“.
Nevertheless, about 9 months later (May 2012), return to work plan number 30 had been designed and given to the injured worker. This RTW plan required an increase in the injured worker’s daily hours, until such a time he could work full hours, which was to be six weeks later!
Workcover SA Tribunal
The SA workcover Tribunal heard neither the worker nor his treating doctor were given notice of return to work plan 30 before it was introduced.
In fact, the day before the injured worker was supposed to start on RTW plan 30, he was certified unfit for all work, and this time due to stress. The injured worker also lodged a second workcover claim for his psychological injury, contending he had suffered from stress since the middle of 2011 because his back injury had failed to improved and because of the (sick) return to work process.
The injured worker said that the thirtieth return to work plan was the “the final straw” and that unreasonable demands were made on him.
The workcover insurer (and employer) of course tried to deny liability for the injured worker’s psych injury, contending that his psychological condition arose from reasonable administrative action!
They went as far as to cease the injured worker’s payments for his back injury, arguing he “breached the obligation of mutuality” in failing to undertake return to work plan 30. Wow!
The injured worker appealed this decision, and the Tribunal Judge found that the 30th return to work plan as well and the manner it was proposed were not reasonable. The tribunal Judge said it was vital for the plan to be presented to the worker and his doctor before it was incorporated because the injured worker was “open to sanctions” if he didn’t comply with it.
The Tribunal judge stated:
I find that, given that the compensating authority decided to move from its earlier proposal of a RTW schedule for a return to full-time work over thirteen weeks to the shorter schedule of six weeks with the nine day lead in period, it was unreasonable for it not to give advance notice to the worker of that proposal, and to not try again to elicit a response from Dr Thoo, before formally incorporating the RTW schedule in a RRTW Plan.
“[The employer’s] frustration at the lack of progress to that date led [it] to act with undue haste and without adequate reflection as to the most appropriate method in which to introduce the schedule for increased hours”
He also stated that:
“There was no reason that the RTW schedule had to be urgently implemented when it was”.
The Judge found the injured worker’s ongoing pain and disability had had an adverse impact on his mental / psychological functioning throughout 2011 and 2012. However, the Judge also said that the 30th RTW plan had not caused the injured worker’s psychological condition, but that it had aggravated it.
“It is apparent that he had much difficulty with even the lightest duties available… [The] worker suffered a major depressive disorder as a sequel to the back injury and the resultant pain and disability”.
Conclusion and orders (as per the full text of the case)
- (197) The worker has suffered a compensable disability being a back injury with psychiatric sequelae resulting in a mental injury. The disqualifying provisions of s 30A of the Act do not apply either as a matter of fact or law. The mental injury did not arise either wholly or predominantly from the actions taken by the employer with respect to the introduction of RTW Plan 30. Even if it did, the action taken by the employer was not reasonable nor was it taken in a reasonable manner. The determination of the compensating authority dated 12 July 2012 rejecting the claim for compensation dated 27 May 2012 is set aside.
- (198) The provisions of RTW Plan 30 were unreasonable. The worker’s notice of dispute dated 29 May 2012 is upheld. The Plan expired on 1 February 2013, and accordingly it would seem unnecessary to make a further order modifying the provisions of the Plan so that it does not impose unreasonable obligations on the worker. The parties have liberty to apply in that regard.
- (199) The compensating authority has not established that there was a breach of mutuality as alleged in the notice of discontinuance dated 29 May 2012. Accordingly the notice of dispute dated 7 June 2012 is upheld, and the s 36 notice is set aside.
- (200) The worker is entitled to income maintenance from 23 May 2012 to date and continuing unless reduced or discontinued in accordance with the provisions of the Act. Liberty to apply as to quantum.
- (201) The worker is entitled to compensation under s 43 of the Act on the basis of 12% WPI. I note that the parties agreed that, in that event, the entitlement was to a lump sum of $22,289.00.92 I fix that amount as his entitlement under s 43 of the Act.
You can read the full text of this interesting case here, including a rather bizarre “rehabber”: E v Local Government Association Workers Compensation Scheme  SAWCT 16 (16 May 2013)
How many return to work plans have you been given? Did your ‘rehabber’ (insurer/employer) seek input from your treating doctor before implementing the RTW plan? Did you also suffer from stress and anxiety (or any other psych injury) because of the way your RTW has been handled?
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