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Another typical return to work program

We received an email from an injured worker, who wishes to remain anonymous [for obvious reasons] sharing her/his experience with a – what we call – typical return to work program, which supports everything but the injured worker…

Another typical return to work program

Return to work program: in the injured worker’s words (*)

“[About one month ago]  my [treating doctor] made a return to work program which was supported by all. Except my employer.

[My employer], with the support of my [workcover] case manager [of course] suggested a different [return to work] program.

[My employer] proposed return to work plan consisted of different hours and days than what had been requested by my treating doctor. My Employer also insisted I take their return to work plan to my treating doctor for approval [sign off]. The injured workers did not particularly see “an issue” with the new plan and thought that s/he was capable of working the extra proposed day.”

The injured worker’s treating doctor approved the new [employer modified] return to work plan.

The injured worker was also told that “we were to trial the extra hours over the next couple of weeks”. This was to commence the [following week].

However, the injured worker then discovered that her/his employer had actually given annual leave to a large number of senior employees and was short on senior staff.Meaning basically that, having the injured worker available and work on “those hours would in fact cover for those staff members on leave”.

The injured worker was NOT told of this “plan”, because, folks, her/his employer has – in fact – been desperately trying to claim that “they had no suitable work for the injured worker”!

The injured worker strongly believes that they no longer “want her/him” in the company.

Interestingly, the injured worker tells us that the “return to work plan” and “trial of those hours” in fact runs out when the staff on annual leave return back to work!

So, it is nothing but a scam of the part of the employer (and of course the insurer case manager) to use and abuse the injured worker, and it has clearly nothing to do with a legitimate, supportive and /or sustainable return to work plan or program.

We believe it is extremely “underhanded” that the employer requested to have the injured doctor change the return to work program. That the workcover case manager clearly collaborated with the injured worker’s employer to defy the initial doctor’s orders is disgusting, and most likely nothing more than a last resort attempt to obtain her/his ” return to work bonus money“.

They both clearly manipulated the injured worker and her/his doctor to accept a return to work plan to suit their staffing needs rather than the injured worker’s health and recovery needs. This is so calloused.Yet, this “scenario” or “tactic” happens every day to many injured workers.

What’s more it is almost guaranteed that both the employer and the case manager will claim and argue the injured worker’s ability to do the extra work around the time these employees are due to return to work from their annual leave.

“This is proof case managers are more interested and involved in the employers business staffing needs rather than an injured employees medical needs”, says the aggrieved injured worker.

 

Have you experienced a dodgy return to work plan? Please share your story with us!

 

(*) Note: workcovervictimsdiary.com modified some of the shared injured worker’s ‘words’ and omitted dates, days etc in order to assure ID protection of the injured worker.

 

Shortlink: http://workcovervictimsdiary.com/?p=7292

 

 

Injured worker resigned but employer remained liable for workers compensation

Interestingly and following our post of yesterday, whereby an seriously injured worker was forced, by Xchanging and her employer to continue full time work without the support of medically, repeatedly requested and reasonable ergonomic aides, which eventually led to catastrophic exacerbation of her injury – we stumbled on a legal case in which The Administrative Appeals Tribunal (AAT) has recently (Feb 2012) found that an employer remained liable to pay workers compensation to an injured worker after she had resigned, because she had too much pain, after a workplace accident to cope with the return-to-work program drawn up for her.

Injured worker resigned but employer remained liable for workers compensation

The injured worker’s case – summary

See full case here: Skinn and Australian Postal Corporation [2012] AATA 121 (28 February 2012)

On 15 May 2008, a female postal delivery officer was delivering mail via motorcycle, when the wheel of the bike slipped and the officer was thrown off. She fell on her left shoulder and hit the back of her head and immediately experienced neck pain, headache and pain in her shoulder. The officer however continued delivering mail to some 20 houses before going home.

The following morning, the officer went back to work because she still had an express letter which she needed to  deliver and she also had to report the accident. The officer was also asked to stay and sort mail at the depot. However her pain was getting much worse by that stage and she went to her local doctor. He diagnosed a whiplash injury and referred the injured officer  to a physiotherapist.

After three weeks off work, the injured officer returned to work. She worked two hours a day until mid-August 2008 and then took a four week holiday. After her holiday she returned to work at four hours per day, however her neck pain persisted.Then she took four weeks of annual leave and, when she returned, worked four hours a day. Her neck pain

The employer sent the injured officer to an occupational physician in October 2008, and he stated that she was ‘fit to work on a full-time basis undertaking duties which limit the biomechanical demand on her neck and shoulder girdle’. He specified that restrictions would apply, such as only occasional lifting of 5 kg maximum weight, no work above eye level or below thigh height, no forceful pushing or pulling, regular postural variation, and no reaching upwards, outwards, forwards, backwards or across the body. A rehabilitation person then drafted a return-to-work plan, which was to start as of 5 November 2008.

At her next review, the injured worker told her treating doctor that she was unable to cope with the required working hours without aggravating her ongoing pain. She submitted her resignation on 20 November 2008.

The officer told her general practitioner she could not cope with the hours required of her. She could not carry out the lightest of duties without aggravating her ongoing pain. She resigned from work on 20 November 2008.

During the next year or two (April 2009 – Jan 2010) the injured worker had several diagnostic tests such as scans as well as a nerve root injection for pain in the neck, however her pain levels did not decrease. The neurosurgeons she was referred to advised her that she needed surgery and she underwent surgery on 15 May 2011, but only after her employer (insurer) agreed to pay for the procedure. After her surgery her neck pain improved dramatically but her shoulder pain persisted and she needed to continue to take pain killers and, by now, also antidepressants.

Workcover claim substantiated

The injured worker had received workers compensation after her workplace injury and up until her resignation.

Given that she felt that her employer/insurer ought to still be liable for her weekly payments after her (forced) resignation, the injured worker sought a review- however the determination that the employer/insurer was not liable to pay compensation after 20 November 2008 was upheld on 5 August 2010.

The brave injured worker then applied to the Administrative Appeals Tribunal for another review and won!

The determination of this particular case turned on the application of s19(4) of the Safety, Rehabilitation and Compensation Act 1988. The two questions to be determined were:

  1. Did the return-to-work program constitute an offer of suitable employment according to s19(4)(b) of the Act?
  2. Was the officer’s failure to accept the offer of employment in the return-to-work program reasonable in all the circumstances, as required by s19(4)(f) of the Act?

The AA tribunal was satisfied that the return-to-work program had constituted an offer of employment. The tribunal then considered the officer’s physical capacity to work, based on the reports of her general practitioner and seven other medical specialists. The Tribunal preferred the evidence of her general practitioner, who had treated her for about 25 years, over the report of the occupational physician, who had only seen her for an hour’s consultation (obviously heavily biased – duh!). The tribunal accepted that the injured worker’s capacity to work had been limited to a maximum of six hours a day. Requiring her to work full-time had not amounted to an offer of ‘suitable employment’.

In evidence

The tribunal accepted that the injured worker had great difficulty working 4 hours a day before she resigned because of pain in her neck and shoulder. Since full-time work had clearly been beyond the injured worker’s capacity, it had been reasonable for her to decline to work according to the return-to-work program. Her failure to accept the offer of employment had indeed been reasonable in all the circumstances.

The medical evidence most preferred by the tribunal included a letter from the injured worker’s treating GP dated 24 September 2010, which stated that she had been unfit to work since November 2008. After the surgery on 15 May 2011, the injured worker’s surgeon had reported that her recovery was relatively slow and quite painful and that on 15 June 2011 she still remained totally incapacitated for work. Some other reports stated that she may be able to return to some form of light work in the future but in a very graduated manner.

The tribunal determined that the employer (and insurer) continued to be liable to pay compensation to the injured worker for incapacity for work according to s19 of the Act after 20 November 2008 (after her resignation) and remained liable to do so.

This case demonstrates that there is hope and that injured workers can say NO to suitable duties when they are really to painful.

Stand up folks, do not let workcover case managers or employers force you to destroy parts of your body forever!
Shortlink: http://workcovervictimsdiary.com/?p=6500

 

Another injured worker put through hell by WorkCover NSW

A couple of days ago, we received yet another anonymous email via our “share your story” page from an injured worker (aka”Suffering”) who writes that s/he has been “put through hell”. Here is her/his heart-wrenching story…

Another injured worker put through hell by WorkCover NSW

As per the [workcover insurances bullying, harassment, victimisation, breach of privacy subject] , I have endured all. I injured myself some 3 years ago and have been put through hell. I have been threatened with removal from duties for not getting better, and

I have had medical treatment cancelled because quote “we have spent a lot of money on you and don’t want to waste anymore”.

I have been refused suitable duties and the duties they had chosen were deemed unsuitable after a review was ordered by the workers compensation commission. My income was stopped for my refusal of unsuitable duties for 5 months I had no income. I complained NOTHING I complained more and more still NOTHING.

I was targeted by a HR manager I complained again nothing it didn’t stop.I asked that the HR manager not have contact with me, my request was ignored. I ended up having a breakdown and the HR managers hunt continued. I have had private investigators following me around. I fought for two and a half years from injury till I was able to undergo spinal surgery.

My employer is self insured and a government entity, so I am fighting an organisation that has very deep taxpayer funded pockets and we all know how the government likes to waste our tax dollars. The only thing I can do is keep fighting, and continue to collect more and more evidence against them.

The biggest problem all injured workers face is that WorkCover is toothless and it costs a hell of a lot of money to seek out the justice required to stop the inhumane treatment we are subjected to.
When it comes to Bullying and Harassment and the most unspeakable treatment injured workers are put through you need money to make it stop. Complaining through the internal channels or through WorkCover won’t help at all.

You need a serious amount of money to bring your grievances’ before the Judicial system whilst not earning enough to simply survive. And now we have the Premier of NSW wanting to slash injured workers incomes even further so he can give back to the mongrels that are costing the system the most.

 

Are you in hell too because you were injured at work? Please share your hellish story so that we can show the whole of Australia how the workcover insurance companies (and some negligent employers) really treat injured workers! Share your nightmares so that we can collect the hard evidence of the widespread pattern of misconduct, wrongdoing, ill-treatment and bullying and seek legal action against workcover insurers! Speak up and yell!

 

Shortlink: http://workcovervictimsdiary.com/?p=6592.