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.
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).
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  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  ACTSC 30 (2 April 2014)
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