A RTW plan must be in consultation with injured worker & doctor

RTW-plan-must-be-in-consultation-with-injured-worker-and-doctor

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

If an employer develops a rehabilitation or return to work program without consulting the injured worker and his/her doctor(s), then the injured worker can  refuse to undertake the program.

In the 2008 workcover matter (Comcare) Ranasinghe and Australian Postal Corporation [2008] 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 [2008] 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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5 Responses to “A RTW plan must be in consultation with injured worker & doctor”

  1. I remember exactly this sort of thing taking place with my WorkCover claim some years ago. I was on multiple occasions presented with a RTW plan which I had been given no opportunity to provide any input for and which my treating doctors had similarly never seen or provided any input into.

    Under those circumstances I refused to sign them and in turn I was described as being “uncooperative” and “a barrier for a successful return to work” by case managers and my employers. When it came down to it though, they didn’t take any action to try and force me to sign. Perhaps it was the fact I took these “plans” to my GP who promptly wrote a short letter explaining why they were not suitable and could not be recommended or signed.

    It is nice though to see some actual solid case law now in place which backs up the sentiment I (and many other injured sods) have had over the years: It isn’t a genuine Return To Work Plan if it has been created without input from all stakeholders (Employer, Worker, Doctors, Insurer).

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    • Same here, and when I was first injured I didn’t even know that RTW plans needed sign-off (approval) from my doctor. Later on during my RTW ‘nightmares’, my RTW plans changed like undies, where never adhered to, and my employer “made the decisions on what was best for me”, that is: they never ever consulted with me, certainly never with my doctor(s), not even with re to needed ergonomic equipment.
      Eventually when my surgeon intervened, his requests for certain ergonomic aides (available in any Office Works) were simply disregarded, even by the so called workcover ‘rehabilitation service provider’.
      The whole saga ended eventually with me suffering numerous aggravations of injury, countless surgeries, a serious permanent injury, and the sack of course.
      I wish I had known my rights then!

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      Workcovervictim July 8, 2014 at 9:11 pm
      • I had over 15 RTW agreements and neither my G.P nor I signed a single one of them. It specifically stated on it that the return to work coordinators had discussed the plans with us both, and since we never once had a discussion I refused to sign. My managers and my return to work coordinators met quite regularly to discuss my injury, what I could or couldn’t do and and what be of benefit to me, which always confused me as I thought surely I would need to be involved in those discussions. Maybe if this occurred I wouldn’t have the permanent injury I now have….

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  2. When I was first presented with a RTW plan, I had no idea what it was supposed to be… I looked it over, with the RTW provider hovering with a pen in hand, and advised I’d have to get my Dr to look it over… I had bells ringing and I’m glad I didn’t sign it. My Dr made some adjustments, to fit in with what I was already doing… RTW plan accepted…

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  3. I recently requested and acquired some copies of reports and paperwork from my insurer; I discovered a very recent report from a rehabilitation provider I attended and was shocked to see “many” printing errors (Lies) about the RTW steps I had taken, ticked boxes where the report has supposedly been sent to me and my Doctor and even a mention of them cautioning me for not filling out a Form to their liking.
    I asked my Doctor at the last visit recently what they thought of the program and jobs listed and guess what? The Doctor had had nothing from the rehabilitation provider either.
    The warning/cautioning the provider gave me also never happened! So I can only assume the provider wrote all the untruths’ to make themselves look got to the Insurer?
    I had hoped this rehabilitation provider was different and actually would help but it seems its not.

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