The following legal cases highlights again that a return to work (RTW) plan must be made in consultation with the injured worker and his/her doctor. In other words, if no consultation was/is made a RTW refusal is valid.
A RTW or rehab plan must be in consultation with injured worker & doctor
In the 2008 workcover matter (Comcare) Ranasinghe and Australian Postal Corporation  AATA 66, a Tribunal has found that the employer— Australia Post—failed to develop a rehabilitation program in consultation with an injured worker and his doctor, which made the injured worker’s refusal to undertake the program valid.
Background of the workcover matter
In Nov 2003, the Australian Post worker suffered an injury to his right wrist and had his workcover claim accepted.
Approximately 10 months later, the injured postal worker was assessed as capable of undertaking a return to work program, which would see him increasing his work hours gradually, from 4 hrs per day to full time and would allow the injured worker to undertake a range of small, light duty tasks.
However, a month later, another return to work program was developed, which involved the injured worker undertaking many (unsuitable) tasks, except lifting more than 3 kg. The injured worker strongly objected to this return to work plan.
Because the injured worker refused to “participate” in this return to work plan, his employer (and insurer) reduced the injured worker’s weekly payments.
The injured worker appealed the decision
The legislation in issue was Comcare’s Safety, Rehabilitation and Compensation Act 1988 (Cth).
The Administrative Appeals Tribunal (AAT) found that although both return to work programs proposed that he would work the same hours for the various periods, the fact that the second program incorporated additional tasks made it ‘significantly different’.
The AAT also noted and accepted that neither of the injured worker’s treating doctors were consulted about the change in duties within the second return to work plan.
The AAT stated:
‘Mr R (the injured worker) suffers from osteoarthritis in his left wrist and increasing activity with his left hand over increasing hours of work would undoubtedly have had some adverse effect’.
‘In my view, to comply with the requirements of s37(3)(f) of the SRC Act, Australia Post would have necessarily needed to discuss the additional duties for the extended hour periods with Mr R (the injured worker) before implementing the program.’
‘The evidence is that no delegate of Australia Post did that.’
The AAT as such ruled that the employer (Australia Post – AP) had breached its rehabilitation policy and ordered compensation be reinstated, and the original amount.
You can read the full text of the legal case here: Ranasinghe and Australian Postal Corporation  AATA 66 (24 January 2008)
Case in point
It happens all the time! Many employers will, through their “intermediaries” such as a RTW coordinator, a supervisor etc, formulate return to work plans for their injured workers. Whilst the first one may be signed off (approved) by the injured worker and his/her doctor, many employers will either not stick to the formal RTW plan, or change it regularly without consulting the injured worker and certainly without consulting the injured worker’s doctor. As a consequence, many injured worker are undertaking duties that they should not (yet) be doing, and many are fearful that, should they not comply, they will be terminated. Many injured workers suffer aggravations, flare-ups or additional injuries by undertaking non-approved return to work plans. It is time to stand up and say “no” to any return to work plan that has been ‘concocted” for you without your input and without consulting with your treating doctor. Your doctor (and any IME) should also be very familiar with the work you are to undertake, and your workplace.
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