In the following 2015 NSW legal case, a workcover insurer (and its client, the employer) tried very hard ( but failed) to appeal a decision which required to compensate an injured worker who resigned from his job. The NSW Court of Appeal found that the injured worker’s duties as prescribed by the worker’s injury management plan were not suitable.
Return to work plans with set stages, developed together with the injured worker’s input and their treating doctor offer employers and injured workers the best chance of a timely and sustainable return to work.
What to do when your treating doctor says you can work or return to work but you know or think you can’t, or you simply disagree? This is a good question and one we receive countless time from injured workers.
The following Fair Work Commission legal decision has ruled that employers are allowed to seek further clarification where medical clearances provided by (injured) workers are general in nature, or where there are genuine concerns that there is a risk to health and safety if the (injured) worker returns to work. In other words, employers can send you to attend a medical assessment, even with a company 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.
Further to our article “Alternative jobs for injured workers unrealistic” and the practice of “dodgy” rehabbers proposing bizarre “suitable/alternative work” to injured workers, here is another legal case have where a court has found the proposed alternative occupation for an injured worker to be unrealistic.
Further to some recent comments about the widespread practice of “dodgy” rehabbers proposing bizarre “suitable/alternative work” to injured workers, courts have found that some (many!) proposed alternative occupations for injured workers are simply unrealistic.
Doctors’ reports—particularly IME reports— on injured workers are all too often painfully lacking any understanding of the injured worker’s workplace or the inherent requirements of injured workers’ job/position. This often results in the assessment of a “fit-for-work” injured worker, without, for example, any consideration(s) to restrictions or reasonable adjustments that should be made in the workplace.
It’s the phone call (or the letter) that any injured worker dreads and it states something like this:
“We hoped (yeah, right!) you would recover enough from your injury to go back to your (pre-injury or old) job, but, eh look, you’ve been away on extended of leave without pay for over 2 months now.”
“You’ have no more sick leave and have also exhausted your annual leave.”
“We can’t keep you, We can’t keep your job open forever, I’m sorry (yeah right!) but we’re going to have to let you go and replace you. Surely you understand that?”
It happens all the time! And many injured workers are pressured into accepting this situation ; others are (falsely) led to believe that their employer is within their rights to, well yes, replace them.
Guess what? It’s not on and it is illegal to terminate an injured or ill worker who is on temporary leave to recover.
The goal of workcover is to return injured workers as fast as possible to work , and then, if possible, return injured workers to their pre-injury health (yep, in that order).