Return to Work

Return to Work – Rehabilitation – Suitable alternative duties

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Return to Work – Suitable Alternative Duties

Needles to say that the primary goal of the WorkCover system is to ensure that injured workers return to work as soon as possible.

Note: Whilst we’ll focus a little on the Victorian RTW, most does apply to all other states as well.

On the WorkCover Certificate of Capacity there are a range of possible capacities to work, they were:

  • Unfit for any duties;
  • Fit for alternative duties;
  • Fit for modified duties; or
  • Expected to be fit for normal duties.

On 1 July 2014, a new workcover certificate came into effect by the VWA (Victorian Workcover Authority), and the new range of possible capacity for work are as pictured below:

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The new “capacity section”

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It is not helpful if your treating doctor (i.e. GP) is not specific about what you can and cannot do e.g. if they write “light duties” and no more. Make sure that your doctor puts details about what kinds of limitations should be placed, e.g. no lifting more than 10kg, no twisting, no bending, no repetitive use of right arm (whatever is appropriate).

If your doctor provides a WorkCover Certificate that states that you are able to return to work on ‘alternate duties’ or ‘modified duties’ your employer has to find appropriate duties and make you a Return to Work Job Offer of ‘suitable alternate duties’.

When you are ‘expected to be fit for normal duties’ you should be able to return to your pre injury duties. If your employer refuses to let you back to work (at all or until you can do all of your pre-injury duties) contact your union in the first place (and/or a lawyer).

The Victorian Accident Compensation Act says that the employer must provide suitable alternative duties or return you to your pre injury employment or equivalent (if you are fit to do it) for the first 52 weeks (= 12 months) (in which you have certificates) after they have agreed to pay for your injury. (for time frames in other states see Workcover Employment Issues

For a successful return to work, it is best if the proposed Return to Work Plan and the job offer of Suitable Alternative Employment are worked through with you right from the beginning. In fact your employer has to get your input. The Return to Work Plan must be prepared if you are off work for 20 days. Note: a ‘plan’ is looking into the future and may or may not contain Return to Work Job Offer, depending on your condition (if you are still in hospital it would not make sense to draw up duties). In any discussions with management about your return to work you have the right to be accompanied by your union representative.

You should be given the Return to Work Offer at least one week before it is proposed that you should return to work. If you are offered alternate or modified duties (a Return to Work Offer) at work, the offer should be in writing and you should take it to your doctor/health practitioner to discuss the duties. Your doctor should be able to go to the workplace and to look at how it works in order to see whether the duties are appropriate. Your doctor also needs to sign off on the RTW plan.

If your doctor/health practitioner thinks that there should be changes in the Return to Work Offer get him/her to put this in writing. Any changes will need to be negotiated. In any discussion/negotiations with management (this could be the Return to Work Officer and/or your Supervisor or Manager) you have the right to have your union rep with you. Do not go alone.

Whilst the law only specifies that you must be given the written offer if you are off work for 20 days, it is more sensible to have the duties in writing from the moment that you need any alternative duties, even if you are only off work for a couple of days (or even not off work at all) and are on ‘light duties’..

You cannot refuse duties simply because you do not like them or because you are not fit for your pre-injury duties.

For example, you were a boner before your injury, you have a shoulder injury and you cannot lift your arm above your shoulder; the duties that have been offered start with assembling boxes and move on to labouring then slicing and eventually returning to boning (after changes to the workplace so that you are able to bone the quarters directly in front of you). If, after visiting the workplace with you present, your doctor considered this to be totally suitable, you refused to try the “suitable alternative duties” you could be cut off weekly payments. A Return to Work Offer should be reviewed regularly to see that it is working and so that your duties are returning to duties that are as close as possible to pre injury duties.

Occupational Rehabilitation Providers (ORP) might be involved in your return to work. If you, your treating doctor, or your employer think that occupational rehabilitation services are needed to make sure that you can return to work safely, a request for the services should be put in writing to the Claims Agent (Case Manager).

Occupational rehabilitation services include:

  • Assessment of what you may need to return to work;
  • Analysis of the work, the workplace and what modification could be made to the work so that you could return to work;
  • Assessment of what you can do, physically eg how long can you stand, sit, walk etc;
  • Work conditioning, that is are there activities that simulate work to improve your physical capacity, stamina and endurance;
  • Counselling aimed to provide you with advice and encouragement to adjust to having been injured;
  • Functional education to provide information specific to the return to work tasks;
  • Vocational Assessment if the injury is such that you will not be able to return to your pre injury occupation;
  • Assistance in obtaining appropriate re-training if you will never be able to return to your occupation;
  • Assistance to seek new employment if it is impossible to return to your pre-injury workplace.

Sometimes the Claims Agent initiates the use of an Occupational Rehabilitation Provider. Usually they phone you and tell you that they are going to send you to a Rehabilitation Provider to help you get to work, and that you can choose one of three Providers. Then they give the name of three companies and ask you to choose, sometimes they recommend one of the three companies. You do not have to answer straight away. It is better if you if you ask them to send you the list in writing. You have two weeks to give them your answer. During this time you can check out the different ORPs. If you don’t notify the Claims Agent of your choice within 14 days they can chose the ORP.

You should check out the Occupational Rehabilitation Providers and make your own choice. You can phone the ORPs and ask a number of questions such as:

  • What can you do to assist me?
  • Do you have an office close to (give the area that you live in) or would you come and meet me close to home rather than me having to travel to your offices?
  • What experience do your group have in dealing with workplaces in the meat industry? Name what you work in e.g. abattoirs, smallgoods manufacturing, office work, labourer etc
  • How much experience do your group have in dealing with my injury?
  • Do you know my employer?
  • Have you been to my workplace or other workplaces in the meat industry? If they have been in ‘my industry’, which ones?
  • Who pays your bills?
  • Are you happy to talk to my Union Representative or have my Union Representative along in any workplace inspection?
  • Are you willing to have me present in all discussions with my treating doctors?

You may check with your Union rep to see whether they have any recommendations about Rehabilitation Providers. You can also talk to your doctor/treating practitioner about which of the ORPs they recommend. Once you have chosen the ORP, tell the Claims Agent. Remember you have only 14 days to give them your choice. Then work together with the ORP to prepare your future.

Retraining

If there is no chance of you returning to your pre injury employment and you need training to learn something new, you need to think through your future and make suggestions about what you would like. WorkCover is not likely to pay for you to go off to university and study law or medicine (or anything like that) but they could look at something like forklift licenses, computer use or health and safety. It is important that the training is not just to get a piece of paper for a job that you could not really do. For example, if you can not turn your head or lift any more than 2 kg there is not much to be gained by getting a forklift license because you would not be able to work as a forklift driver; or if you had a criminal record there would not be much point in training as a security guard.

If you request reasonable retraining with the support of your treaters (doctors, surgeon etc) and it is refused, you can appeal the decision. The Union, Unionassist, and Workcover Assist can help you to take things like that to conciliation.

RTW: Statutory requirements

Return to Work is the process of returning an injured/ill worker to the workplace. Return to Work (as fast as possible) is the primary goal of all workers compensation schemes in Australia.

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This section focuses on return to work after an  injured/ill worker.

Employers in all Australian states have certain legal obligations to injured/ill workers with regards to return to work which include:

  • providing injured/ill workers with suitable (or pre-injury) employment
  • keeping the injured/ill worker’s job open for a certain period of time
  • preparing return to work plans/programmes for injured/ill workers
  • nominating a return to work coordinator
  • putting in place and maintaining risk management and occupational rehabilitation programmes

 

HWCAIf you are interested in RTW statistics (possibly biased ones), head over to “the Heads of Workers Compensation Authorities (HWCA)” who publish annual reports of ‘return to work statistics’ of injured workers.

 

Duty of care to provide suitable employment & a word about unlawful dismisal

The injured worker should also check the relevant workers compensation law  because some jurisdictions prevent the dismissal of an injured worker for a specified period, where the reason for the dismissal is because of the worker’s absence on workers compensation. In other words, the employer must – by law- provide suitable duties to an injured worker for a specified period of time.

For example, in New South Wales this period is 6 months, while in Victoria this period is 12 months. For ease of reference we have incorporate these time frames within the state’s legal and statutory RTW requirements listed below.

The purpose of workers compensation legislation is to assist an injured/ill woker’s return to work after a workplace-related injury or illness, generally through the establishment of an appropriate rehabilitation programme, including a return to work plan.

Most jurisdictions (states) expressly prohibit the dismissal of a worker absent on workers compensation until a specified period of time has elapsed. This is to provide injured/ill workers with sufficient time to be rehabilitated and return to their normal duties.

Also an injured or ill worker who is on workers compensation may be protected by several overriding pieces of legislation, including federal unlawful dismissal laws; Commonwealth, state or territory workers compensation laws; state or territory anti-discrimination laws, or federal disability discrimination laws.

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Unlawful dismissal laws expressly prohibit an employer from terminating aworkers employment for reasons based on the worker’s ‘temporary absence due to illness or injury’.

‘Temporary absence’ is defined by the Fair Work Act  regulations 2009 as an unpaid absence of not more than a total of 3 months in any 12-month period. From 1 July 2009, workers compensation has been considered a period of unpaid leave and counts towards the three-month temporary absence threshold.

Unlawful dismissal laws, anti-discrimination laws or federal disability discrimination laws may also apply where a worker claims their dismissal was due to their physical incapacity (injury/illness).

To defend their case, the employer would have to show that they took reasonable steps to accommodate the incapacitated worker’s condition.
Conversely, failure of an incapacitated worker to ‘participate’ in a rehabilitation programme would be a defence for an employer; but, an employer’s failure to provide light duties, where obliged and if appropriate, will contravene these laws.

Return to Work: Legal and statutory requirements

Victoria (Vic)

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In Victoria the relevant legislation is contained in:

  1. Accident Compensation (Occupational Health and Safety) Act 1996
  2. Accident Compensation Act 1985

Duty of care to provide suitable employment

In Victoria, an employer is required to keep a position open, i.e pre-injury position or equivalent or suitable employment, for an injured worker for 12 months of the date of the injury.

Appointing a ‘Return to Work Coordinator’

In Victoria, all large workplaces (employers/companies) with a payroll of $1 million per year or more must – by law- appoint what is called a return to work coordinator.
Those large employers/companies who operate more than one workplace are allowed to appoint one (or several) return to work coordinator(s) to oversee their injured/ill workers’ rehabilitation and return to work at their different operated workplaces.

There are a couple of exemptions to the mandatory appointment of a RTW Coordinator and these include employers or companies who:

  • employ workers who are directors of the corporation
  • employ workers who are members of the employers family
  • employ workers who are pupils at a school
  • employ domestic or like workers (a person who works within the employer’s household)
  • hold owner-builders permits under the Building Act 1981; and
  • those who only perform work outside Victoria

Appointing a Rehabilitation Provider

An employer/company is required to nominate at least one approved occupational rehabilitation provider, that is approved by  the Victorian WorkCover Authority (WorkSafe Vic)

New South Wales (NSW)

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Duty of care to provide suitable employment

In NSW, an employer cannot terminate an employee within 6 months of being injured if the reason for the termination is due to the worker’s absence on workers compensation.

In NSW the relevant legislation is contained in:

Workplace Injury Management and Workers Compensation Act 1998

Appointing ‘Rehabilitation Coordinators’

Employers/companies with a basic premium of more than $50,000 (aka as Category 1 employers) are required – by law- to nominate (and train) a person as a Rehabilitation Coordinator
The employer is also required to ensure that this Rehabilitation Coordinator has a valid WorkCover certificate certifying attendance at the WorkCover accredited course in ‘Introduction to Rehabilitation Coordination’ (or an exemption from WorkCover NSW.)
For the Category 1 employers, only the employer’s Rehabilitation Coordinator, an accredited rehabilitation provider ( or an industry/professional rehabilitation coordinator) is allowed prepare and develop return to work plans/programmes.

Appointing Rehabilitation Providers

A NSW employer/company must – by law- nominate/appoint an accredited rehabilitation provider. A NSW workplace should have a list of rehabilitation providers available as part of its rehabilitation policy and programme.

WorkCover NSW has Guidelines for Workplace Return to Work Programmes which provide detailed information and guidelines for employers, workers, insurers, nominated treating doctors and workplace rehabilitation providers.

 South Australia (SA)

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Duty of care to provide suitable employment

According to the WorkCover Corporation of South Australia (WorkCover SA), when a worker is injured at work, the employer must provide alternative duties (where possible) and work cooperatively with the (workcover insuerr) claims agent. In certain circumstances an injured/ill worker’s employment can be terminated but the employer should seek advice from the claims agent before doing so.

In South Australia the relevant Return to Work legislation is contained in:

Unlike in some other states such as Victoria and NSW, South Australia has no legal requirements to appoint a Rehabilitation Coordinator (or alike)  unless the employer is self insured.

However, SA employers with 10 or more employees (workers) have to – by law- set up a rehabilitation programme.

The workers compensation/rehabilitation legislation is administered by WorkCover SA

The Workers Rehabilitation and Compensation Act 1986 Section 28 (1) and(2) specify that WorkCover SA can appoint rehabilitation advisers in order to:

  • “Assist in devising and coordinating rehabilitation programmes for disabled workers
  • To be responsible to the Corporation for monitoring the progress of disabled workers who are involved in rehabilitation programmes
  • May, subject to monetary limitations set by WorkCover SA (the Corporation), expend money of the Corporation in obtaining for a disabled worker services and equipment that may assist towards rehabilitation and;
  • Shall consult with employers with a view to expediting the return to work of disabled workers.”

Also a SA employer is not required to employ a rehabilitation adviser but can use the services of an external rehabiliation adviser.

Queensland (QLD)

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Duty of care to provide suitable employment

In QLD, an employer cannot dismiss a worker within 6 months of being injured if the reason for the termination is due solely or mainly because the worker is not fit for employment because of a workers compensation injury. A worker  may apply to the employer, within 12 months after the injury, for reinstatement to the worker’s former position. The worker must provide a medical certificate that certifies the worker is fit for employment in the former position.

In Queensland the relevant Return to Work legislation is contained in:

Appointing a Rehabilitation Coordinator

A QLD employer is required, by law, to appoint a rehabilitation coordinator if the employer employs 30 or more workers.
The rehabilitation coordinator must be employed by the employer.

An employer may appoint 1 rehabilitation coordinator for more than 1 workplace of 30 or more workers with written approval from WorkCover.

The rehabilitation coordinator is required to be accredited by WorkCover QLD.

Engaging a Rehabilitation Service Provider

The Rehabilitation Coordinator is allowed to determine if or that a Rehabilitation Service Provider is required to provide the following services:

  • Functional capacity evaluation
  • Workplace assessment
  • Suitable duties programme
  • Critical incident debriefing

Note: Approval by a WorkCover QLD Rehabilitation Counsellor is required prior to engaging a Rehabilitation Service Provider.

More information (including updates) can be found on the WorkCover QLD website

Australian Capital Territory (ACT)

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Duty of care to provide suitable employment

In ACT, an employer is required to provide suitable employment (where possible) for an injured or ill worker, subject to the worker’s request, within 6 months after the day the worker commenced receiving workers compensation. The worker may be dismissed for a reason other than the worker’s absence due to an injury subject to workers compensation.

In ACT the relevant Return to Work legislation is contained in the:

Appointment of a Rehabilitation Coordinator

An ACT employer must appoint a person to be a rehabilitation coordinator and ensure that there is always an appointed rehabilitation coordinator. Also, a notice should be displayed in the workplace showing the name of any person appointed as the rehabilitation coordinator.

More information (including updates) can be found on the WorkSafe ACT website.

Western Australia (WA)

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Duty of care to provide suitable employment

In WA, the employer of an injured or ill worker who regains at least partial capacity for work within 12 months of the date upon which the injury occurred, is obliged to provide the worker with a job as reasonably practicable to the job s/he was doing immediately before the injury occurred, except in certain circumstances

In WA the relevant Return to Work legislation is contained in the:

Appointing a Rehabilitation Coordinator

In WA, there are no legal requirement for the appointment of a rehabilitation coordinator. Only a Vocational Rehabilitation Provider can be requested.

Requesting a Vocational Rehabilitation Provider

In WA, a workcover  approved Vocational Rehabilitation Provider can be requested either by the employer, a doctor or the injured worker in order to provide assistance.

Of importance is to know that injured workers have a right to chose the Vocational Rehabilitation Provider of their choice (unlike in many other states)!

More information (including updates) can be found on WorkCover WA website

Northern Territory (NT)

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Duty of care to provide suitable employment

Under the NT workers compensation legislation, and according to NT WorkSafe, suitable employment must be reasonably available up until 104 weeks (2 years) of incapacity has elapsed. The employer must assist with any rehabilitation programme and take all reasonable steps to provide or obtain suitable employment for the injured/ill worker. However, this duty of care does not apply to a worker who, because of the seriousness of their injury/illness, will have little or no real ability to return to the workforce.

NT WorkSafe administers the following main legislation in the Northern Territory:

Work Health and Safety (National Uniform Legislation) Regulations

Workers Rehabilitation and Compensation Regulations

With regards to the appointment of a Rehabilitation Provider

As far as we know, the (workcover) Insurer can arrange for a referral to a vocational rehabilitation provider.

More information (including updates) can be found on the NT WorkSafe website.

Tasmania (Tas)

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Duty of care to provide suitable employment

In Tasmania, the employer is required to keep a position open for the injured/ill worker for 12 months from the date of injury, unless it is not practicable to do so or a valid reason for the position no longer exists.

In Tasmania the relevant Return to Work legislation is contained in the:

Appointing a Rehabilitation Provider

As far as we know, the (workcover) insurer can appoint a Rehabilitation Provider.

More information(including updates) can be found on the WorkCover TAS website.

Commonwealth (Comcare)

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Duty of care to provide suitable employment

The relevant Return to Work legislation is contained in the:

Like all other workers compensation schemes, the Commonwealth workers’ compensation scheme and the Seacare scheme also “recognise the importance to both the worker and employer in achieving a return to work as quickly as possible.”  Comcare promotes this through processes and, of course,  incentives such as the requirement for employers to provide suitable duties for injured employees, payments of rehabilitation expenses and compensation payments. Under the Comcare Scheme, the employer has the primary responsibility for the rehabilitation of injured workers and may engage an approved rehabilitation program provider to assist with rehabilitation a programme for the injured worker.

The Comcare website provides useful and up to date, detailed information about the Commonwealth legislation and the rehabilitation processes and fact sheets (i.e. Rehabilitation management system – Compliance with the legislation and a whole section on Return to Work).
For  rehabilitation and return to work information for the maritime industry please refer to the Seacare Authority website.

Also refer to our section “Workcover Employment issues

 

31 Responses to “Return to Work”

  1. Donny, Would you please phone me on the number I gave you as I have run across some difficulty with one of the strategies that you advised me to implement. Don’t want to say more here, but could you please give me a call?

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  2. I am incredibly concerned that the RTW provisions in the WIRC (Vic.) 2013 are not observed in RTW plans, particularly for NES injured workers.
    I am especially concerned that the concepts of “suitable employment” and the RTW Hierarchy as defined in the Act (WIRC 2013) are not observed or applied.
    I am appalled at the quality of the Skills Analyses completed by a supposed qualified ORC and the stranglehold that the insurers (the agent) still hold on the outcomes of the ORC’s assessments of “employment options”.
    I am particularly appalled by the blatant discrimination that continues to be applied to the situation of older workers on Workcover who seek to RTW. It is untenable that in an era in which older workers are encouraged NOT to retire, but continue working for as long as possible, that the system of Workcover Vic. as controlled and practised by “the agent” is so ready to ride roughshod over the rights of older workers on the basis of their age alone which is only ONE factor in to be considered in any decisions made re. RTW.
    I am absolutely outraged that there is no one legal avenue that can be pursued as I see it, to combat this blatant prejudice. When will older workers STAND UP and STAND TOGETHER and WHEN WILL HUMAN RIGHTS LAWYERS IN AUSTRALIA begin to address this issue? WHAT IS NEEDED IS A CLASS ACTION; NOT A SITUATION WHERE INDIVIDUAL AFTER INDIVIDUAL CAN BE PICKED OFF IN ONE COURT OR ANOTHER. DOES ANYONE OUT THERE HEAR ME?? DOES ANYONE CARE?? DOES ANYONE ELSE WANT TO DO SOMETHING ABOUT THIS STATE OF AFFAIRS???

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  3. What do you do when the treating doctor fills out a work cover certificate and says no capacity for 2 weeks and then your employer says come to work and see our doctor who then does another certificate that’s says I have capacity to work even tho I’m still injured????

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    Andrew George. July 18, 2016 at 8:50 pm
read-before-u-commentThis is a statement pointing you to our seriously injured but esteemed and honourable Social Networking Sites Warning and our comment policy. A must read in the context of a very adversarial workcover system! Remember to mention in which state you reside if you seek advice.

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