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:

workcover-cert-vic

The new “capacity section”

workcover-cert-vic2

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. Can a worker withdraw their medical consent for an insurer or their agents at anytime especially when they are bullying my doctor? Or can you limit your consent in that they cannot phone but must write to them instead.

    My insurer contacted my Dr recently and my Dr became so upset with the insurer that he no longer wants to deal with the case anymore as the insurer wants me to return to work despite the dr issuing a current certificate of capacity advising unfit for work.

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  2. I’m 40weeks into a claim in Victoria and had chosen the occupational rehab group from a list of 3, however my employer arranged a work capacity assessment with a company they chose (that wasn’t even on the list), despite them acknowledging that I had chosen a provider

    Is this ok for them to do?

    They involved this group in the beginning when they were bullying me out of making the claim and this providers philosophies are all about saving premiums so I am very wary of them coming involved again

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    • NO, IT MOST DEFINITELY IS NOT OKAY! Your choice is your choice. The employer cannot change the Occupational Rehabilitation Provider to one of their choosing! NOT ON!

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    • Sorry, I did not realize how long ago you asked this question! I hope you resolved this issue as per your rights!

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      • Thanks Sarah Jane, it was awhile back and the “compromise” was I have my Occupational therapist and my employers at the same time and the employers is like a vicious little weasel who dominates the OT I chose it’s absurd and has made things more difficult than eating glass

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  3. I only happened to see your posts as I am currently in the throes of a dilemma with my insurer over Return to Work. I need someone who has some expertise in this area to give me some advice. I have been evaluated as sufficiently recovered from my injury to make a staggered return to my profession. I cannot, and after mny experiences with them have no wish to, return to my previous workplace, so am seeking Part-time work elswhere. However, after 2 years out of it, I need updating in new technology as applied to my profession (a governmental edict stresses that I must be up-to-date). Insurer (CM) gave verbal in principle agreement, but insurer has now reneged on the basis that IME said I could do alternative (lower paid work), which GP also said I could physically do. Both however said I was capable of returning to my prior profession and this was their primary comment. Insurer claims that as I could do alternative work, return to my prior profession was not necessary, I could obtain the same results from generic training in new technology (unrelated to my profession) and they were not legally obligated to provide such training, so they would not do so! I have written a letter to my new CM asking confirmation of these reasons, as well as to the worksafe enquiry line requesting clarification of the insurer’s response. My question is: (1) Can I legally refuse to do the alternative work suggested and insist upon returning to my previous profession as both the IME, my GP and orthopedic surgeon have all advised that I am capable of doing so? (2) Am I within my rights to insist upon the insurer’s assistance with updating skills training appropriate to allow me to regain employment in my profession?

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    • @Sarah-Jane, I didn’t go thru this bc mine sacked me instead but from what I know in general you are entitled to return to the injury employer once you have a capacity for work. If you need training to get your skills up-to-date then you also should be entitled to that. Every employer would probably opt to have an injured worker get a new job somewhere else if that was in the legislation so I doubt it is true. Ask the Agent and Worksafe in writing for a copy of 1. the employers response 2. a copy of the relevant sections of the relevant Act(s) and 3. a copy of the relevant WorkSafe Policies and Procedures and 4. a copy of any relevant Compliance Codes. Also do you have an OR provider and what do they say about it?

      This should flush out the shit from the rest of it.

      Let us know when you have it if u need more help. Go to the Online Claims Manual and do a few searches, would help but am drowning in my own issues atm.

      Start here: http://www1.worksafe.vic.gov.au/vwa/claimsmanual/default.htm
      Search for “return to work” employer obligations start in section 5 –

      5.2.1 Provide employment

      Employers have an obligation to provide pre-injury or suitable employment to a worker. This applies for the obligation period to the extent that it is reasonable to do so. Specific exemptions apply under the legislation.

      For detailed information on this obligation, refer to Compliance Code 1 of 4: Providing employment, planning and consulting about return to work.

      Provide employment

      If, during the employment obligation period, the worker:

      no longer has an incapacity for work, the employer must provide the worker with employment that is the same as or equivalent to the position the worker held before the injury

      has a current work capacity, the employer is required to provide the worker with suitable employment.

      WIRC Act: S103 Provide employment
      Exceptions

      Agents should refer to Exceptions to RTW obligations for information about employers who are exempted from complying with their RTW obligations.

      WIRC Act: S101 Part not to apply in certain circumstances
      52 weeks obligation period

      The obligation continues for 52 weeks. This period may not be consecutive as it is an aggregated period and begins on the earliest date (see below) and includes those periods during which a worker has an incapacity for work (resulting from or materially contributed to by the injury to which the employment obligation period relates).

      Obligation to provide employment begins

      The employment obligation period starts on the earliest of the following dates when the employer:

      receives a valid medical certificate issued by a registered medical practitioner

      receives a claim for compensation for weekly payments

      is notified by WorkSafe or their Agent that the worker has made a claim for compensation for weekly payments

      is notified by WorkSafe or their Agent that the worker has provided a medical certificate.

      WIRC Act: S25 Medical certificate

      WIRC Act: S96 Definitions – Return to Work

      WIRC Act: S103 Provide employment
      Periods excluded from the obligation period

      The employer obligation period does not include any period:

      the worker does not have an incapacity for work
      commencing from the date the worker’s claim has been rejected by the Agent and ending on the date that a direction or recommendation of a Conciliation Officer accepted by the Agent or a court determination that weekly payments are to be paid is made
      commencing on the date that WorkSafe sets aside a decision to accept a claim for compensation against an employer and ending on the date that a direction or recommendation of a Conciliation Officer or a court determination that weekly payments are to be paid, is made
      commencing on the date a decision to revoke a direction of a Conciliation Officer to pay weekly payments is made and ending on the date that weekly payments resume (unless the employer continues to provide suitable or pre-injury employment)
      during which a RTW improvement notice issued to the employer is stayed by WorkSafe or by VCAT.

      Other relevant factors

      The employment obligation period is reduced by the aggregate of any periods that the employer provided suitable employment when the employer was not required to do so (for example, where the claim was initially rejected).

      Ideally, employers would continue to meet this obligation during a period that a rejected claim is being disputed. This ensures continuity, is good for the worker’s recovery and their RTW. Where suitable or pre-injury employment is provided in such periods this counts towards fulfilment of the employment obligation period.

      Obligation after 52 weeks

      Employers are encouraged to provide appropriate employment for their workers after the obligation period ends.

      Reaching the end of the employment obligation period does not automatically enable an employer to terminate a worker’s employment. For example, State and Commonwealth labour and discrimination laws may place additional obligations on employers. In addition, Enterprise Bargaining Agreements may be relevant.

      Employers should become familiar with these and other relevant requirements.

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  4. The issue for me is that I was on a short term contract, so the employer is under no legal obligation to offer me a return to work! And anyway, as I said, given the way I’ve been treated by them (I’ve seen the messages the employer sent to the insurer when I made my claim, which shows how upset they were that I, a contract worker, had made a claim about which I had no choice, eg.”What, if anything, do we have to pay this woman?”), there is NO WAY, Hell will Freeze Over before I would even consider returning to work for them! However, I need skills updating to return to the same type of employment that I have been doing for most of my adult life & which I love! The IME and first RTW Consultant suggested I would also be capable of alternative (repetitive and much lower paid) work, for which I really have neither the interest, personality, nor aptitude . However, the insurer has denied my application for retraining on the basis that I could do this other work instead of returning to my original profession. I cannot understand this at all as I am highly motivated to return to the profession I love and have been applying widely, while knowing I need this updating which I cannot pay for myself. I’ve asked for an explanation citing the verbal reasons the Return to Work Consultant had told me were the reasons the insurer gave me for their denial of my request. My new (Chinese) CM’s reply was very brief and did not refer to any of the reasons I had been given. It simply said: “I am sorry it couldn’t be approved by [insurer’s name], unfortunately we have guideline set by worksafe and procedure to follow.” I’ve asked for precise details including the source material re. the (singular) “guideline”, “policy” & “procedure” to which the CM has referred. it will be interesting to see if I get a reply and how long i have to wait for it! I’ve decided to lodge a complaint with the VACC again!

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  5. The issue for me is that I was on a short term contract, so the employer is under no legal obligation to offer me a return to work! And as I said, given the way I’ve been treated by them (I’ve seen the messages the employer sent to the insurer when I made my claim, which shows how upset they were that I, a contract worker, had made a claim about which I had no choice, eg.”What, if anything, do we have to pay this woman?” with underlining I can’t replicate here), there is NO WAY, Hell will Freeze Over before I would even consider returning to work for them! However, I need skills updating to return to the same type of employment that I have been doing for most of my adult life & which I love! The IME and first RTW Consultant suggested I would also be capable of alternative (repetitive, much lower paid) work, for which I have neither the interest, personality, nor aptitude. However, the insurer has denied my application for retraining on the basis that I could do this other work instead of returning to my original profession. I cannot understand this at all as I am highly motivated to return to the profession I love and have been applying widely, while knowing I need this updating which I cannot pay for myself. I’ve emailed the insurer to request written confirmation of the reasons their Return to Work Consultant had told me were the reasons verbally given to him by the insurer for their denial of my request. My new (Chinese) CM’s reply was very brief and did not refer to any of the verbal reasons that had been given to the RTW Consultant (or he claimed had been given to him). The CM simply wrote (a direct quote): “I am sorry it couldn’t be approved by [insurer’s name], unfortunately we have guideline set by worksafe and procedure to follow.” I’ve asked for precise details including the source material re. the (singular) “guideline” & “procedure” to which the CM has referred. It will be interesting to see if I get a reply and how long I have to wait for it! I’ve decided to simply lodge a complaint with the VACC again! Which again will be delayed, but at least the insurer will have to give me a proper explanation for their refusal.

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    • I was declared permanently incapacitated for my precious role and my employees idea of “retraining” is me typing lists of things the company owns.
      I’m two years in and honestly still can’t get an idea of what is right and wrong. I’ve been to countless conciliations and medical panels it’s agony me dramatically.
      I’m not sure how your situation worked being a temporary employee sorry. There are some good lawyers out there it may be your best option

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      • @Sarah-Jane, Write to the Agent with the points I suggested. Tell them you require an answer by 4pm on 2 March 2016. Failure to respond will be deemed a refusal. Note that you previously requested this information to be provided on ? date and cc. the email to the complaints dept at WorkCover. MAKE SURE you attach a “read receipt” to your email. Then give them that amount of time and then escalate it.

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  6. Thanks Donny! I did receive a reply (finally) from my new CM – just as cryptic as her first. It was one sentence from the same source as your reference, above (omitting many other parts more relevant, of course). You’ve referred me to a very useful link: I can see from scrutinising it that they have broken so many of the rules regarding RTW (I won’t go into details here as I don’t want to identify myself to any insurer-cum-hack-cum-spy by being too specific – that’s if my insurer has not already worked that out!) I don’t know if I should be ‘a RTW with the injury-employer’ because the employment contract ceased barely a month after my injury, but I do know that it’s much clearer there that I am entitled to a RTW at the same levels of status and pay, than it is with a RTW NES. The spirit of the legislation which created this RTW NES category was to enable injured workers for whom there was genuinely no job role in the injury employer’s workplace (s) because of the ongoing effects of the injury, to undertake a RTW. (As one Workcover Victim here has suggested, it’s flawed logic because no employer in his or her right mind would take on some-one else’s injured worker. Worksafe does not seem to get that businesses fundamentally operate to make a profit; yet this is in Senior Primary School introduction learning to basic economics. No business person would risk their bottom line to take on an injured worker of some other firms’ making, even with the supposed carrot of a financial incentive to do so. Think of the extra management time and energy involved in implementing and monitoring modifications to the job role as a result of the injury!) However, in my case the RTW NES has evolved into the source of a back-out clause where the insurer is able to really harass and block the injured worker, from an effective RTW! Also, I’m beginning to question the integrity of the OR I’m seeing because he effectively ‘hoodwinked’ me into the 2 additional “options” (The word “options” is defined as the plural form of “a choice” that in reality appears to be no real choice). He had claimed these options were merely to make the list up to a total of 6 options (ie. “they are only ‘options’: you don’t have to take up them all!”); that I could only focus on the first four ‘options’ which were within my areas of expertise. Those 2 extra ‘options’ -one I did not actually know about until after my request for training had been submitted by the OR, have provided a vehicle for the insurer to decline all submissions for training that do not have flow-on effects specifically to them. In addition, they are also a means for the insurer to wave a big stick at me threatening a Breach in terms of non-compliance for not seriously considering these two dreadful options! I am sick at heart because of this. I have worked really hard to recover from my injury. I still have difficulty sustaining my efforts at my laptop writing job applications with multi-part Key Selection criteria requiring a paragraph for each and STILL cannot say I am up-to-date with the one CRITERION that all applicants are expected to have in my profession. I’m finding it difficult to fit in my 3 times daily exercises to ensure I rebuild strength to finally overcome my injury. So, it’s back to the ACCS; meanwhile I’m getting closer and closer to the 230 weeks! The cynic in me says that’s exactly why the insurer is playing “funny buggers” as my dad would say, over this issue. In another 12 weeks waiting for conciliation at the ACCS, my 230 weeks will almost be up and as far as I can see it will be ‘all over red rover’! I’m usually an optimist, but right at this moment I’m at a real all-time low! Gee Life Sucks! I think I need a strong drink!

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    • @Sarah-Jane, why are you worried about 230 weeks? Nothings happens that I know of but I may be missing something. I think there is auto termination of some claims at 130 weeks, I also believe they can use the 130 wk termination at any point after that to terminate a claim if they think they have grounds but I’m puzzled about 230 wks???

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      • Donny, It’s my typo: I meant 130 weeks! I was pretty flat when I wrote that last night, so was not fully “on the ball”!

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  7. Caitlyn, I’ve just read back what I’ve written here tonight. Boy, I’m sorry I’ve been such a whinger – as I know everyone here’s in the same boat or worse. Are they really making you type these lists ALL the time? Are you saying that’s what you’ve been doing for 2 years? Surely the company does not own that much to sustain this work? Have they regularly traded machinery, equipment and consumable supplies etc. that would enable them to sustain this work for you, or are you largely retyping the same thing over and over? How on Earth do you stand it? I could not do that for a day, let alone a week! Are you also saying the agony of the job, the repeated negotiations and the fruitless mediation is dramatically ageing you? It sounds like a deliberate attempt to wear you down so that you will quit! God people can be so cruel! Put them into a workplace instution and it’s never a surprise how low otherwise morally sound individuals will sink, all in the name of the greater good of the organisation! It does not sound as if they have any moral qualms at all about doing this to you, either! My heart goes out to you! You deserve the “Perseverance of the Year Award!” Just to let you know: they are WRONG! WRONG! WRONG! and you are in the RIGHT! Remember to go on your gut when they mess with your head! Keep your chin up girl!

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    • One day they mixed it up and I laminated blank paper. Another time I had a month of going through every document in the staff induction packs, and changing the font
      One day I was given letters to fold and put in envelops. So I did that and posted them and received the only praise I’ve had this whole time for using my initiative to put mail in the mail box.
      I’ve fallen asleep, they don’t care, I’m invisible

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  8. Caitlyn,
    That just sounds dreadful! How can they look at themselves in the mirror for behaving this way? Isn’t this where you were injured? Sounds like they’re making you the scapegoat for their neglect! Human beings can behave deplorably – yet I can imagine they feel perfectly justified in their actions! It really is a form of bullying! They are nothing but bullies! Shame on them for behaving in this way!

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  9. I think they’re contravening the Act too because if it’s a RTW with the injury employer you are supposed to be afforded work of the same status, as well as the same level of pay that you had prior to your injury (I know this now thanks to Donny’s advice!) Have you been documenting all of these meaningless tasks in diary form with dates, etc. they are asking of you?
    When the next VIC meeting at Vic Trades Hall of injured workers on WC? If it’s monthly, there should be one for this month coming up soon!

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    • @Sarah-Jane, we are working with Injured Workers group Vic and Vic Trades Hall Council. U can contact us through the workcoverorg@gmail address as the email at Injured Workers Group is not accessible atm. We are trying to coordinate the group to be able to assist injured workers and also trying to work towards hold the VWA accountable for the Agents actions and implementing change to the unfair, unreasonable and what could be alleged as unlawful behaviour of the Agents. We need to know who is prepared to join the group and help fight for injured workers rights. Trades Hall have been wonderful but we need to unite as a group and help mount a united campaign to enure these things are addressed and changed. Let us know if you are interested in being involved.

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      • Donny,
        This sounds like it’s right up my alley. I’m all for working for a change to the system as it’s rotten to the core. What has just happened to me is yet another attempt by the insurer to set me up by using my doctor to ensure the RTW limited the insurer’s expenditure on training for my RTW.

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  10. Hi Donny, I emailed 2 days ago and still have heard nothing! Is the email address only perused occasionally? I’m really chomping at the bit to have ago at this! My experience with RTW NES and how this OR came up with totally illegal “employment options” is a stunning example of lack of qualification to do the job, and outright mismanagement. I’m being kind here, as it may infact have been deliberate, rather than just plain incompetent. But I’m NOT going to take it lying down. I’m at my most dangerous when backed into a corner! Just let me at’em! Hell has no fury like me with my “Irish-up”!

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    • @Sarah-Jane, sorry it’s manned by injured workers so not always able to respond straight away. Someone will get back to you today.

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  11. Can anyone remember reading a small article about a USA study that management attitudes to injured workers’ return to work affected the extent/risk of re-injury to those returning workers? I know I read it somewhere and I’ve tried to remember where. Was it on this website or somewhere else? Can anyone help me re. this?

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  12. It’s OK everyone! I’ve found it and it was on this website!

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  13. I’ve just come across this Worksafe Australia publication online to which VWA (as well as the equivalents in all the other Australian States, the ACTU, ACI, Comcare Australia, CRS [now disbanded, more’s the pity] and VECCI) was a signatory in 1995.
    It is a document regarding Best Practice in Rehabilitation, that sets a benchmark (for then) which still has plenty of relevance today!
    Caitlyn, you’d find it interesting to read because of what it says about Best Practice RTW being about “meaningful” work which does not humiliate, but instead builds the RTW person’s esteem. It would be good for you to read it and at your next meeting quote some of its passages to your empoyer and that OT who is so wimpish! Why not have a read when you’re at work doing something meaningless, or with nothing whatsoever to do? It would be better than going to sleep from boredom and might give you a Great Sense of Purpose (as well as justification for your sense of injustice) to read what the VWA had signed off on as long ago as 1995! One other thing I came across re. Best Practice RTW plans was the importance of consideration of OHS Risks & Effective Control of those Risks, but also a slightly different point was consideration of the OHS Risks for the workers who “take up the slack” of an injured worker’s return to work when that worker is not able to work at the usual full capacity. It commented that the injured worker should not be made to feel guilty for this, because it was management’s issue to resolve. I had not thought of that angle before. Also, they make the point that effect rehabilitation and RTW cannot be separated from an effective OHS prevention program, which has definitely been lost in the mix in many organisations I feel. As a result employers who are negligent in terms of OHS prevention and don’t keep track of the injuries, identify potential risks & focus on effective controls, find it really easy to blame the injured worker. For example, I’ve started at many new firms where no-one could tell me who was responsible for OHS! Employee OHS is definitely not a high priority in my industry, whereas the safety of clients is very high priority.
    GUIDANCE NOTE FOR BEST PRACTICE REHABILITATION MANAGEMENT OF OCCUPATIONAL INJURIES AND DISEASE [NOHSC:3021(1995)] http://www.safeworkaustralia.gov.au/sites/swa/about/publications/Documents/280/GuidanceNoteForBestPracticeRehabilitationManagementOfOccupationalInjuriesAndDiseases_NOHSC3021-1995_PDF.pdf

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  14. Sorry, me again, I’ve been doing some wide reading on the effectiveness of rehabilitation programs and RTW programs worldwide. An interesting article about RTW program in the USA argues that this continues to be the greatest area of cost due to re-injury.http://www.ishn.com/articles/82404-bringing-the-injured-back-to-work Another article has been the result of reputable OHS research in Canada which has questioned the current orthodoxy that an early return to work is best for the recovering injured worker, suggesting that it actually may more than likely be harmful in terms of the potential for reinjury and therefore increase the overall costs of rehabilitation.(The first article actually has a section which discusses the political correctness of the terms you use, advocating the current correct terms when discussing a RTW with injured employees, which I found quite amusing.) If any one is interested in this 2nd article, I’ll cite the source here. Still almost every scheme around the world appears to stick to the orthodox belief that it’s good for the injured worker to RTW as soon as possible, which in fact may often be too soon! Interesting – eh? I always felt this argument that you need to get back on the horse as soon as possible was a bit of a con-job!

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