We have blogged about return to work plans numerous times, but a general summary may be of use. The essence of this post is that return to work plans that are staged and developed together with the injured worker give injured workers a greater chance to return to work, quickly and safely and in a durable manner. This article also covers the VIC return to work dispute process (dedicated to ‘Porsche47’).
Return to work plans
In order to return an injured worker back to work in a safe, and sustainable way, injured workers’ employers must work together with the injured worker and with the injured worker’s treating doctor.
Developing a return to work plan
There are several important steps involved in preparing a good return to work plan:
- First of all the injured worker’s employer must properly clarify the injured worker’s function – that is: what the injured worker can and can not do with re to work. Injured workers’ employers should not speculate, make assumptions and/or play doctor! In order to clarify an injured worker’s function or restriction(s), employers should first read and assess the injured worker’s medical certificate (certificate of capacity), and if unclear about something they can talk to the injured worker’s treating doctor/specialist, but only if the injured worker consents.
- It is extremely important that the injured worker’s employer (or appointed Return to Work Coordinator) works in collaboration with the injured worker when developing the RTW plan. The injured worker should be consulted and their input in the RTW plan is extremely important for a successful return to work.
- The employer must then assess and determine what work tasks/duties the injured worker is able to undertake, with or without some reasonable accommodation (such as an ergonomic desk set up, chair with back rest, under desk keyboard tray, footstool etc.) For example the injured worker’s certificate of capacity may list some restrictions such as ‘limit or no typing; no bending/lifting; no sitting longer than 20 min etc. This essentially does not necessarily mean that the injured worker cannot undertake his/her pre-injury duties. As long as the injured worker can undertake the inherent requirements of their pre-injury job, with or without reasonable accommodation/modification, there is no need really to offer or force an injured worker into some other ‘job’. (Also see: Injured workers who can do some but not all inherent job requirements can be sacked ; injured workers who cannot perform inherent requirements of the job can be sacked)
- Injured workers’ employers, as well as their treating doctor(s) (and any ‘rehabber’ as well as IMEs) should basically have a good understanding on the functional demands of the injured worker’s pre-injury job and assess where these match or can be made to match (e.g with reasonable adjustments) the injured worker’s current capacity for work. To give you another example, if you work at Bunnings and have a lifting restriction of no more than 5 kg, it may still be possible for you to do your job, or at least a good part of it (like driving the forklift which does not require any lifting, storing shelves with goods that weigh no more than 5kg, help customers, water the plants, whatever is part of your job).
- If the injured worker has ‘significant’ restrictions, the injured worker’s employer must seek a suitable job (duties). For example if you injured your arm or shoulder and your job involves driving a forklift, your employer will need to find something more appropriate for you to do whilst you recover. This can could be a more sedentary job (i.e. office work) the injured worker is capable of doing. Note that the amount of time the employer has to provide suitable duties varies from state to state; for example in VIC the injured worker’s employer must offer suitable duties for a period of 12 months.
- Once the injured worker’s employer has matched the injured worker’s work duties with his/her functional capacity, the employer then needs to obtain medical information, recommendations about how the return to work plan should be staged (i.e. graduated RTW, sart with 4 hrs a day, 3 days a week, increase to 8 hrs a day 3 days a week etc.) Again with the injured worker’s permission the employer can talk to the injured worker’s treating doctor (or refer to the certificate of capacity which should outline the above).The length of the return to work plan will obviously depend on the nature and severity of the worker’s injury and the duties the injured worker is hoping to return to once recovered.
- Finally, the injured worker’s employer needs to offer suitable duties that are within the injured worker’s functional capacity (that is: medical restrictions, what the injured worker can and cannot do) and… that the duties are meaningful (within reason) to the injured worker.
Staged and flexible return to work plans
As mentioned above it is generally a good idea to have a staged return to work plan, where an injured worker can gradually increase their working hours. Studies have shown that staged RTW plans, developed with the input of the injured worker are most successful.
Obviously a return to work plan should only start when the injured worker has a/some capacity to work. A good return to work plan should clearly outline the different ‘stages’ the injured worker will go through until the injured worker is ready (and declared fit) to return to their (full) pre-injury work, including hours.
A properly developed return to work plan will outline how the injured worker will start their return to work, when the injured worker is (reasonably) expected to be able to return to their full pre-injury duties.
For example the RTW plan may state that the injured worker is to start with 4 hours per day, 3 days a week, that their hours and job tasks (duties) may or will change during the time the injured worker aims to return to pre-injury work. For example, the plan may state that the injured worker is expected (or estimated — and based on medical info) to return to pre-injury hours in 8 weeks time, and outline the injured worker’s hours and duties during this time.
Needless to say that a good return to work plan should be FLEXIBLE, in line with the injured worker’s individual ‘recovery’, needs, and issues/difficulties that may (or may not) arise during the staged/graduated return to work. The RTW plan should be reviewed often (e.g weekly) and closely monitored, by both the employer (e.g RTW coordinator) and the injured worker (and his/her treating doctor/specialist).
For example should one of the outlined “suitable work” duties/tasks cause (more) pain to the injured worker, the RTW may need to be amended. That is the particular task/duty may have to be changed/modified, or the “suitable duties” are in fact not suitable. It could be something that can be easily fixed with, for example, providing the injured worker with some assistive tools or equipment (a good example would be if typing causes the injured worker pain, then the RTW could be amended to a) decrease or limit the hours of typing, b) or to provide the injured worker with dictation software and/or anything else that may help alleviate the pain (i.e. under desk keyboard tray as to make the injured arm more comfortable).
It is obviously extremely important that the injured worker’s employer (i.e. RTW coordinator, supervisor, whomever) seeks both the injured worker’s input and the injured worker’s treating doctor/specialist opinion. Again, employers should NOT ever “play doctor” or make any kind of “assumptions”. Together with the injured worker and their treating doctor’s input, a return to work plan can be changed, and at any time. It is not uncommon for a particular ‘stage’ of a RTW plan to be prolonged (i.e. work 4 hrs a day for 3 weeks instead of 1 week) or amended (i.e. decrease working hours, provide injured worker with more assistive equipment/ergonomic aides, or even change the ‘suitable duties’ all-together). Remember that you, the injured worker, can REFUSE to undertake a task/duty if you feel unsafe or if it hurts.
Many injured workers have aggravated/exacerbated their injuries because of inflexible and poorly developed RTW plans (with no injured worker’s consultation nor their treating doctor). It is therefore important that RTW plans are properly developed, that they are flexible and that input is sought from both the injured worker and his/her treating doctor(s).
Injured workers are INDIVIDUALS, and although workcover insurers appear to stick to some ‘guide’ on how fast an injured worker should recover from a certain injury, the reality is that we (injured workers), like any other ‘patient’ recover uniquely; some recover much faster than others. This essentially really means that injured workers’ RTW plans should be developed to ‘cater’ for that particular injured worker, RTW plans should be unique and flexible, period.
It’s therefore also very important that you (the injured worker) discuss or provide feedback about your return to work – how you feel you are doing or coping with your working hours and duties – both to your employer (i.e. RTW coordinator) AND your treating doctor/specialist.That way, your treating doctor/specialist can provide further important information to your employer/RTW coordinator re your “functional capacity”. This information can be put in your certificate of capacity, or, with your permission, your employer can speak with your treating doctor about your medical ‘restrictions’ etc.
Who is actually responsible for the development and assessment of return to work plans?
Who exactly develops and assesses the return to work plan(s) actually depends on the state you are in and the size of your employer. Please refer to our ‘return to work page‘.
Many employers have Return to Work Coordinators (or something similar) who are responsible for the development and monitoring of the injured worker’s RTW.
If your employer/company does NOT have a dedicated return to work coordinator, then the responsibility of the development and monitoring of an injured worker’s RTW [plan] falls on to the injured worker’s manager or supervisor, because they have the greatest contact with the injured worker and should understand the duties offered and be able to liaise with the injured worker directly on how ‘things are going’ with re to RTW.
Can the injured worker object to a (or part of a) return to work plan?
As stated above, the injured worker’s employer (i.e RTW coordinator/manager) should offer “suitable duties” aligned with the injured worker’s functional capacity (what s/he can and cannot do, restrictions etc.) and ensure – within reason-that the “suitable” duties/tasks are meaningful to the injured worker. There is not much more humiliating than having to undertake meaningless ‘duties’!
As long as you, the injured worker, request a reasonable change/modification to your return to work plan, your employer should definitely consider making the requested changes.
For example, you may (for some reason) feel better (i.e have less pain) in the afternoon than in the morning, and request your RTW does NOT make you work morning shifts for that reason, then your request is most likely completely reasonable and your employer should allow you to work afternoon shifts only.
Another example would be that you find typing really painful, but do want to persevere with your RTW (plan), and you request that your employer provides you with dictation software, or a headset (for taking calls) and a Dictaphone (that can transcribe what you recorded), then that is also reasonable.
However, if you have a (temporarily) injured leg and use a wheelchair (for 6 weeks) then requesting your employer demolishes a wall within your work area would be seen as unreasonable. But asking to enter the building from a different access, using a lift and be provided with a footstool so your leg can stay elevated at work would be reasonable.
It is always a good idea to discuss your RTW with your treating doctor(s) frequently, so that your doctor can help/support you when asking for modification, equipment, different work hours etc.
WorkSafe Vic Return to Work
We refer back to a recently posted query by “Porsche47” asking who the best person is to make a complaint in relation to return to work.
According to the WorkSafe VIC online Claims Manual, (Resolve RTW issues), if an issue about a worker’s return to work arises, the employer and worker must attempt to resolve the issue.
Resolve issue in line with the agreed RTW issue resolution procedure at the workplace. If there is no agreed procedure the employer and worker must attempt to resolve the issue in line with the RTW issue resolution procedure set out in the Ministerial Direction.
RTW issue resolution
If a return to work issue arises, the employer and the worker must attempt to resolve the issue in accordance with the relevant agreed procedure or in the absence of this, the RTW Issues Resolution Procedure outlined below.
If an issue about a worker’s return to work arises, the employer and the worker must attempt to resolve the issue in accordance with:
- the relevant agreed procedure or
- if there is no relevant agreed procedure, in accordance with the RTW Issues Resolution Procedure outlined in the Ministerial Direction.
AC Act: S207 Resolution of return to work issues
WIRC Act: S118 Resolution of return to work issues
Aims of the RTW issue resolution procedure
The aims of the RTW issue resolution procedure are:
- to provide guidance to parties involved in RTW activities as to how to resolve a RTW issue
- where the issue remains unresolved, provide a clear pathway for parties involved to escalate the issue and gain further assistance if required.
The agent’s role
The agent’s role is to promote the availability and effective use of the RTW issue resolution procedure to both employers and workers, where relevant.
Use of the procedure
The RTW issue resolution procedure should not replace normal communication between parties involved in the RTW process.
The RTW issue resolution procedure is intended for use when a party entitled to raise an issue considers that a RTW issue is not being addressed or has not been addressed to their satisfaction.
As soon as possible but no later than 20 days after a RTW issue has been reported, the employer, the RTW Coordinator and the worker must meet and try to resolve the issue.
For the purpose of resolving the return to work issue, the employer and the RTW coordinator should liaise directly with the worker, however a worker may be assisted, represented and supported during the RTW issue resolution process.
If a worker’s representative, THP, RTW Coordinator, manager, supervisor or provider of occupational rehabilitation services raises an issue on behalf of the worker, the employer must also invite that person to participate in the issue resolution process.
The RTW issue resolution procedure should be conducted in a manner and in a language that is agreed by the employer, RTW coordinator and the worker to be appropriate.
If, after the issue is resolved, the worker, their representative, manager/supervisor, THP, OR service provider (if any) or the RTW Coordinator request that the employer set out in writing the details of the issue and matters about its resolution, the employer must do so with 14 days of the request and must provide copies of the information to those who requested it.
Diagram of the process employers should follow to resolve a RTW issue
When a RTW issue has been identified the parties involved should refer to the relevant agreed procedure. If one doesn’t exist, then the Return to Work Issues Resolution Procedure outlined in the Ministerial Direction is to be applied.
Who can raise a RTW issue
The following persons can raise a RTW issue:
- the worker
- a representative chosen by the worker – the worker has the option to be represented, supported or assisted in the return to work process by another person
- an OR services provider
- a RTW Coordinator
- the worker’s manager/supervisor
- the worker’s THP (Treating Health Practitioner)
Payment for persons that attend issue resolution process
Persons other than those listed in clause 7(1) of the Ministerial Direction (the employer, Return to Work Coordinator and the worker) cannot seek payment for attending the issue resolution process.
Suitable RTW issues
The Return to Work Issues Resolution Procedure may be used to resolve RTW issues including but not limited to circumstances where the:
- employer unreasonably delays or refuses to plan a worker’s return to work
- employer inadequately plans a worker’s return to work
- worker does not agree with the employer’s proposed suitable employment and/or return to work arrangements
- employer refuses to offer worker suitable employment
- employer refuses to provide or provides inadequate return to work related documentation to a worker
- RTW Coordinator is not nominated and appointed within the required timeframe
- RTW Coordinator is considered not to have adequate seniority to perform their functions
- employer breaches the confidentiality of a worker’s personal information as it relates to return to work
- employer refuses to consult or consults inadequately with other parties about the return to work of a worker.
Unsuitable RTW issues
The Return to Work Issues Resolution Procedure is to be used for issues arising out of the RTW process. It is not designed for complaints about the VWA or its agents (unless the VWA is the employer of the worker), claim liability, payment of an entitlement, termination or suspension of a claim, reimbursement of an expense or a conciliation application or outcome. It also excludes general matters of policy and practice applying across the workplace and not directly and particularly related to the worker’s return to work. These issues should be addressed using alternative issue resolution processes.
Note: The VWA should be notified directly where employers fail to meet their obligations. Agents should be notified directly where workers fail to meet their obligations.
An agreed procedure
Ideally, an agreed procedure should outline the steps involved in resolving a workplace RTW issue and not be a procedure that exists solely for other purposes such as a grievance or complaint procedure, unless such a procedure is agreed to be used for RTW issues.
It is recommended that the agreed procedure be in writing and should be clear and accessible to all parties who may potentially be affected by a RTW issue.
The procedure must have been agreed. This means that it must have been agreed to by the employer and its employees. The agreement must be genuinely consensual, incorporating genuine consultation.
The agreed procedure cannot be imposed on one party by another or arise out of a flawed process. A flawed process may be one where:
- only a select group of employees participated and agreed with the employer
- agreement is reached through an unrepresentative process.
If either the employer or a majority of employees have concerns about an agreed procedure, they are entitled to withdraw their agreement and unless or until a new procedure is agreed, the Ministerial Direction procedure will apply.
If an employer’s agreed procedure does not meet the above criteria it is not a valid alternative to the Return to Work Issues Resolution Procedure outlined in the Ministerial Direction.
The ministerial direction procedure
If at the time a RTW issue arises the employer does not have in place an agreed procedure then the parties should follow the steps outlined in the RTW Issues Resolution Procedure outlined in the Ministerial Direction.
Refer: RTW Direction No 1 of 2010
Non-participation in the RTW issue resolution procedure
This issue resolution procedure has been developed to help workers and employers resolve RTW issues before they become disputes and hamper a worker’s early, safe and sustainable return to work. If employers and/or workers do not attempt to resolve RTW issues in accordance with their agreed procedure, or in accordance with the Return to Work Issues Resolution Procedure outlined in the Ministerial Direction (in the absence of an agreed procedure) the parties may be in breach of the legislation and their failure to attempt to resolve RTW issues may be reported to the VWA or their agent.
RTW compliance codes
Victorian employers should follow the WorkCover Authority’s (WorkSafe VIC) return-to-work compliance codes when managing an injured worker’s return to work from a work injury or illness.
WorkCover’s (WorkSafe VIC) has a list of compliance codes, which outline how to comply with return to work legislation.
While it is not required by law to follow a compliance code, and failure to do so does not give rise to any liability -be it civil or criminal, a Victorian employer that follows the return to work compliance codes will have met the relevant return to work ‘obligations’.
To help you understand the laws and how to comply with your RTW obligations, WorkSafe Vic has developed Return to Work Compliance Codes for employers:
Compliance Code 1 of 4:
Providing employment, planning and consulting about return to work. Provides employers with practical guidance on how to achieve compliance with the following obligations in relation to a worker with an incapacity for work:
- provide employment
- plan return to work
- consult about a worker’s return to work.
Compliance Code 2 of 4: Return to Work Coordinators
Provides employers with practical guidance on how to achieve compliance with the obligation to appoint a Return to Work Coordinator who has an appropriate level of seniority and who is competent to perform their role.
Compliance Code 3 of 4: Return to work information
Provides employers with practical guidance on how to achieve compliance with the obligation to provide their workers with return to work information and consult about how that information is made available to them.
Compliance Code 4 of 4: Cooperating with labour hire employers about return to work
Provides hosts with practical guidance on how to achieve compliance with their obligation to cooperate with labour hire employers in relation to return to work.
Return to work information template
The codes provide comprehensive and practical guidance, including case studies, to help you comply with your obligations under the Workplace Injury Rehabilitation and Compensation Act 2013.
There are also a number of publications below which summarise the employer and worker return to work obligations.
- Information for employers – Return to work obligations
- A guide for employers – What to do if a worker is injured
- A guide for injured workers – Introducing WorkSafe
- A guide for injured workers – Returning to work
- The basics you need to know – Return to work coordination
Lander and Rogers also has an interesting short video on how to manage long-term ill or injured workers.
A very long ‘article’ indeed,but we do hope you find it of use
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