Return to work – don’t let your employer talk you into RTW too soon

return-to-work-cartoon

One of the  most frustrating things about workplace injuries is that injured workers’ employers’ interests (and those of the insurer of course) are very often at odds with the injured worker’s interests. A common example, your employer would like you to return to work as soon as possible. If you’re injured, it’s in your best interest to wait until you are healed and physically (or mentally) ready to handle your job demands. Or else, you could get injured again or never make a full recovery.

Return to Work (RTW): Don’t let your employer (or insurer) talk you into getting returning to work too soon

Quite a few employers are known to pressure their injured workers into returning to work , well before they are ready. If your employer is pushing you to return to work, or threatening to sack you if you can’t come back straight away, it’s almost always a big red flag and you should proceed with extreme caution.

This is particularly true if your employer pressures you to get a release (fit for work certificate) from your treating doctor so that you can return to work. Even if your employer promises that you won’t have to do your full job duties, just don’t do it.

As much as you may want to return to work (and normal life), getting a certificate of capacity to return to work before you are physically (or mentally) able to do so can seriously damage your workcover claim.

In the worst case scenario, the injured worker returns to work only to get sacked! This happens more often than you think! At this point, the injured worker is no longer getting weekly payments (payment for lost wages while you recover), soyou don’t have a paycheck at all and, frankly, you are not in great physical (or mental) condition when it comes to (potentially) getting/finding another job.

Getting a full release to return to work (certificate of capacity) from your treating doctor is wonderful, but only if it’s true. If not, it such a premature release will often hurt your ability to get further medical treatment covered by workcover. What’s more, it can decrease the value of your  workcover case/claim.

At the end of a workcover claim, when you have reached “maximal medical improvement” (that is: when your injury has stabilised) many injured workers will get some sort of a settlement (e.g lumpsum) if their injury is permanent. But if your doctor has signed off that you are “all better” and can get back to work, the employer and -obviously- their workcover insurance company are definitely going to argue that you don’t suffer from any permanent impairment, given the doctor’s certificate and your ‘ability’ to return to full duty work.

The bottom line is that a release to full duty return to work by your treating doctor should not happen until you are actually ready (physically and/or mentally) for full duty work. By being ready means that you, the injured worker, have exhausted your medical treatment and either you are completely healed or you are as good as you are going to get.

If you are unsure of whether you are ready for full duty return to work, talk to a workers’ compensation lawyer about the implications of returning to work and the potential other options you may have.

Here is such an example of an employer forcing an injured worker to return to work… only to sack him!

The Fair Work Commission found that an injured fly-in-fly-out miner (Central Norseman Gold Corporation Ltd) was unfairly sacked after he refused to return to work in an alternative role that he was not licensed to perform, .

In September 2011, the injured worker sustained elbow and hand injuries in a rock burst at a mine.

In March 2012, the injured worker was certified fit by his doctor to return to work as an air-leg miner, but the injured worker was “advised” (read pressured) by his employer that he would be required to drive trucks instead – a job that the injured worker was not licensed for (and a job that  also paid less than his pre-injury role).

When the injured worker refused to return to work, his workcover payments ceased. What’s worse this injured worker was then sacked for “abandoning” his employment.

The injured worker made an unfair dismissal claim, and FW Commissioner stated it appeared the employer “attempted to force [the injured  worker] to agree to take up truck driving duties by ceasing his workers’ compensation payments”.

The FW Commissioner also found there was no evidence the worker had “forsaken” his employment.

“On the contrary, [the worker], once fit to return to his pre-disability duties, had agitated for months to return to his old job,” the FW Commissioner said.

The FW Commissioner also sstated that a company of Central Norseman Gold’s size – 150 employees – should have done a better job of managing its (injured) workers.

“With such a size, and the nature of the industry of the employer, a certain degree of human resources sophistication would be expected; none was evident,” he said.

The FWC upheld the worker’s claim.

You can read the full text of the legal case here: Duke v Central Norseman Gold Corporation Limited [2013] FWC 2993 (11 June 2013)

Here is another disturbing legal case whereby an injured worker who was told by his employer “to soldier on”

In this case, an injured worker who was told by his foreman to continue performing manual tasks immediately after he aggravated an ankle injury! 

A Canberra Contractors Pty Ltd labourer injured his left ankle and both wrists (in March 2007) when 1 of 3 concrete covers on a telecommunications pit he trod on gave way, causing him to fall into the pit.

On his return to work (in August 2007), the injured worker was told “not to walk on uneven ground”, but he had to do so to get from his car to the site office, and consequently rolled his (injured) ankle.

The injured worker reported the incident to the foreman, who basically told him “to walk back across uneven ground and use a shovel to expose pipes in a trench”.

When the injured worker stepped into the trench,well… his right foot slipped and he fell and injured his back.

The injured worker sued his employer for damages for the March and August  incidents and injuries, and also sued the pit installer (Sutherlands) for the first incident and injuries.

At the  ACT Supreme Court the injured worker argued that the pit installer (Sutherlands) had failed to ensure the pit was properly and safely installed, and failed to backfill the area around the pit to stabilise and support it.

He further argued that if Sutherlands wasn’t liable for the unsafe pit then Canberra Contractors (his employer) was.

The injured worker claimed that his employer (Canberra Contractors) failed to warn him that pit covers might not be safe to walk on.

Whilst Canberra Contractors accepted liability for the second incident, it and Sutherlands denied liability for the first incident!

However, the ACT Supreme Court agreed that Canberra Contractors was also liable for the second incident.

[It] knowingly gave the [injured worker] tasks which were unsafe for him in circumstances where not only was it on notice of the restrictions on his duties associated with his return to work but where it had been told immediately before the [incident] of an additional injury to his ankle making the task to which he was assigned inappropriate and potentially unsafe,” stated the ACT Court

The court ordered Canberra Contractors to pay the worker $548,658 in past and future economic loss and other damages. (in other words the injured worker was awarded nearly $550,000 in damages.)

But the ACT Court found that both the employer nor the pit installer was liable for the first incident.

“The most likely cause of the cover falling in when the [worker] stepped on it was that the prefabricated pit unit had been deformed out of shape so that it did not safely hold the concrete cover,” he said.

“The cause of the pit being deformed from its designed shape was the manner in which the backfilling around the pit was carried out.”

At the time of the incident, the ACT Court found, Sutherlands hadn’t had the opportunity to inspect and identify any problems.

The Court added that it would be procedurally unfair to allow the worker to claim negligence against Canberra Contractors on this matter after he chose to “run his case” on Sutherlands being responsible.

You can read the full case here:  Steven Brown v Canberra Contractors Pty Limited and Sutherlands Communication Services Pty Ltd [2014] ACTSC 30 (2 April 2014)

 

 



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9 Responses to “Return to work – don’t let your employer talk you into RTW too soon”

  1. Work cover does ruin peoples lives especially if the insurance companies always put the almighty dollar first and victims get fucked no acknowledgement of my assault, no medical treatment offered or loss of wages and they want you to return to work what are those hypocrites thinking??? Bet you it would be different if it was them in our position, who agrees??? This is a letter I wrote to QBE please read!!!!!!!!!!!!!!!!!!!! I have copied and pasted for all victims to read, enough is enough I want my life back and so do other victims!!!!!!!!!!!!!!!!!

    QBE where is your loyalty to injured and assaulted staff. I ask QBE this QUESTION???

    What is a life worth, I ask and I have not claimed or been down this Work Cover road to HELL, even when I got assaulted on duty in the past, various times and she has been one of these clients. I assure you my claim is LIGITAMENT and NOT A FABRICATED LIE.

    I was assaulted on duty, this fact still remains, and my claim is real and not a fabricated lie.

    I am the Victim, but no support from QBE that proved it at conciliation when HOW COLD INSURANCE COMPANIES CAN BE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    QBE spends hundreds of thousands of dollars supporting the football team the SYDNEY SWANS and sponsors them what about your injured workers.

    Do you really care or support staff on work cover, what about providing a safe work place???
    QBE UP TO DATE REFUSED ME MY LIGITAMENT CLAIM AND WERE ARE MY HUMAN RIGHTS. I AM THE CONTENDER THAT WILL NOT GIVE UP!!!!

    I rest my case and have been honest with QBE insurance company, provided QBE proof from builder and dates of pictures taken, smart phones don’t lie when these pictures were taken, proof of original dates were presented as well. This is a LIGITAMENT claim and as I stated, my voice needs to be heard and unfortunately I have been treated like a CRIMINAL not the VICTIM so I hope QBE does the right thing.
    What happened to OUR Human rights for injured and assaulted staff?
    I rest my case!!!!!!!!!!!!!!!!!!!!!!

    IRENE PERFETTO

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    • Don’t expect them to be reasonable, fair or just. U will just be more diasppointed. Don’t trust them or the VWA, the system is rife with corruption. FOI your claim documents. Remember that Concil is just a way for them to see all of you argument b4 it can get to Court s that they can cover their arse and fabricate whatever they need to deny your Claim. They get paid bonuses for the priviledge. Try to get a solicitor if u can ot eh union, this is a very hard road to travel by yourself. I’m setting up something to try to help people. Stay strong. Bert

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  2. Hey Irene,
    I totally understand your frustration and disbelief with how you are being treated. I was also a victim of a workplace assault. I was fortunate, loosely speaking :-), as my facial fractures were pretty hard to deny. However, my psychological injury was quite severe and CGU gave me hell for 3 years.

    It is nothing personal – workcover insurance companies are just doing what they do – deny, deny, deny and deny some more.

    You feel like you want to give the bastards a taste of what you are going through. Truth is – they don’t care and they never will!

    The most important person here is you. Firstly, get your GP to get a referral to a good psychologist (can be done under medicare). Secondly, talk to a lawyer.

    If you can avoid the workcover nightmare – please try. Your injuries (particularly psychological injury) will only get worse under workcover (I’ve been there done that).

    It’s unfair, it’s unjust, it stinks, it ruins you financially and mentally. If you take the bastards on, I mean REALLY take them on, you have to be prepared that you could lose everything – family, friends and assets.

    I feel for you Irene, I really do. Whatever you decide, knowledgeable and experienced workcover warriors on this blog will share their experiences and hopefully that will help.

    Best of luck.

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    • Thank you for your response FU_CGU and it helps to pour your heart out to strangers that truly care and feel for you as you did an I do for others. I received a return to work letter yesterday and wasn’t able to open it but opened it this morning. I broke down and how dare they try to send me back to work when work cover is pending approval from the ACCS Medical Panel as I hope they do the right things as well and where is the medical treatment they provided me with my answer is NONE. The return to work letter which I will not sign the bastard’s are sending me to a house that is known to be more assaultive and hard house cause I have worked in it in the past. They are setting me up for another down fall and secondly I am taking so much medication there is no way I can go and function by driving my car there and back or do any tasks as such because this house is dangerous and full on. My words “Go Fuck Themselves”. Cause my so called employer or QBE don’t give a shit and I hope they get off there arses and come into the Real World instead of pushing pencils and paper and sit on there big fat arse. I will trade places with them and they will feel what HELL IS ALL ABOUT. ARE THEY WILLING TO DO THAT CAUSE KARMA IS OUT THERE FOR THEM. I REST MY CASE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

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    • @FU_CGU and @Irene – thanks FU_CGU for taking the words out of my mouth and your support to Irene (and people in similar circumstances). It is very true that “Stress claims” are one of the most difficult areas in WorkCover claims, most are rejected and the “investigation” process surrounding a stress claim is indeed-generally-more harmful and sickening than the initial psychological injury. This applies both to primary and secondary psych injuries.

      The way I see it, Irene, is that your workcover claim will also inevitably look at the (potential/alleged) psych injury you suffered as a consequence of your assault at work. Often the problem with this is that you may be assessed as suffering from a secondary psych injury (and no primary psych injury); or that they may give you a very low primary psych injury (injury sustained as a direct result at the time of the assault) and a relatively higher secondary psych injury rating.

      I was also assaulted at work and suffered a very serious physical injury, but also a psych injury. When I was first assessed by the “IME” I received about 5% for the primary psych injury -PTSD and about 20 or 25% for the secondary psych injury (major depression etc). However, when the matter was contested at the Medical Panel, I received the reverse ratings (so a high rating for primary psych injury). The issue being that secondary psych injuries do NOT count for the purpose of a lumpsum for example; hence IMEs will routinely downgrade your primary psych injury. In Victoria you also need to suffer of 30% or more permanent primary psych impairment before you can get a lumpsum! 30% psych injury equals the lunatic’s house or thereabout (and is rare to achieve). Hence in some cases you’re better off getting off the sick system to preserve your sanity (or what’s left of it).

      So, basically you really need a good lawyer in your corner to help you obtain your rightful benefits and to discuss the best strategy for you.

      With re to your RTW letter, rest assured I know the feeling. I am still unable to open any correspondence from my insurer… Beware that any RTW plan must be signed off by your treating doctor. So, please discuss this “plan” with your treating doctors (especially a psychiatrist and psychologist) and raise your valid concerns you have regarding the RTW plan (making you work in an even more dangerous place). Your doctors should be able to work out something together with YOU, and your employer, and only if you are certified fit to undertake (some) work.
      If you have a certificate of capacity stating you are unfit for all work, then don’t panic – you do not have to RTW (yet). If you have some capacity for work, really discuss the issues raised with your doctors and hopefully they can help you with a more suitable job.

      With re to the Medical Panel, whether you can RTW or not will also depend on the specific question(s) asked to the Panel. For example the question asked by the Conciliator may only be whether your injury is work related, and what type of injury you suffer from (physical and/or psych). They may not have asked the question whether you are fit to RTW. This is where you need to liaise with your treating doctors at this stage.
      They may also have sent you to an “IME”, or may still send you to assess your work capacity. Again, you may or may not to dispute the IME’s opinion at yet a new Medical Panel… and so it goes on and on and on…

      Hopefully the Panel will make an opinion in your favour – most Panels (in Vic) are reasonable, and your claim will be accepted. That in itself will be a biggie, but… after that you will still need to fight with the insurer for any pathetic benefit, as FU_CGU described so well.This may include being referred to new medical panels – ie to assess fitness for work, then to assess permanent (if any) impairment etc etc.

      Good luck and welcome aboard!

      [this comment has been manually inserted on my behalf by WCV3 – unfortunately I am not doing well and hence I have not been able to participate much in discussions, replies etc, I am not allowed (and cannot) use my dominant arm, typing is problematic indeed).

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      • Everyone please remember that the Medical Panel is made up from the same corrupt IME’s that they send u to, it’s the same CLUB. Just be careful. Also DON’T carry on about how badly you have been treated by the system. That’s what they want. They will then deny your injury and say that it is just the stress of the system that is affecting you, hence if they get you out of the system then you will be fine. It’s a WIN WIN WIN for them every beeping step of the way. FOI all documents before you go and make sure you take copies of all relevant material in your favour as they will conveniently leave most of that out. Make sure your material is supplied to the Medical Panel directly and noted in the appendix of all material that they MUST consider in forming their opinion. Also remember a Medical Panel decision is binding on all parties and cannot be overturned by a Court, so be PREPARED.

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        • Can anyone explain how & why the WorkCover Authority keep the list of registered IME’s a BIG secret. If they are independent and the system is transparent I cannot see why they refuse to provide the list. Has anyone got the list or tried to get the list under FOI? Confused???

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  3. Thank you all for your support this is a great site and people who are victims really care and so do I. Gold help us victims and cheers for VICTORY !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

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