Return to work programs
During a workers' compensation claim, the obligation of the workers' compensation insurer is also to try to get the worker back to work with his injuries, if feasible. This can mean a return to the employment you were doing at the time of your injury or, if that is not possible, to some other suitable employment where feasible.
In some cases, the injuries sustained by a worker, having regard to the worker's age and work experience, as well as their capacity for work they are limited to due to their injuries, result in them being unable to return to any work in the future. In such cases, the worker will have a significant claim for economic loss in their common law claim for damages.
Workers compensation insurer investigations
In other cases, the worker may be able to return to their work with the employer on restricted duties or alternate duties. The workers' compensation insurer is obligated to investigate this during the workers' compensation claim. What will happen in such cases is the workers' compensation insurer will introduce a return to work program for the injured worker.
The program will have to be approved by treating doctors. Usually an Occupational Therapist ("OT") will be brought in by the insurer to assess the worker's work environment and duties involved in the return to work program to ensure it is not placing the worker at risk of further injury, and to determine if any specials aids or adjustments need to be made to the workplace or duties the worker is to perform in the return to work program to accommodate the worker's injuries.
What happens once the Occupational Therapist's assessment is completed?
Once the return to work program is approved by treating doctors and the OT assessment is completed, the injured worker is usually commenced back on a gradual return to work e.g. 3 days per week at 3 hours per day doing light duties for the first week, then 4 days per week at 4 hours per day for the next week doing light duties, then 5 hours per week for 5 days per week on increased duties and so on, until pre-injury work hours are reached.
In some cases treating doctors may consider the worker will never be able to get back to their pre-injury work hours and in such case, the return to work program will be limited to getting the worker back to work for the hours he can work.
Return to work program called "Recover at Work"
The worker, due to his injuries, may not be able to return to his pre-injury work duties at all, or the employer does not have alternate suitable duties for the worker. In such case, the return to work program called Recover at Work will be organised through another employer, termed a "host employer", during the workers' compensation claim.
In such cases, the same procedure and pre-requisites apply for the return to work program as stipulated above - namely, that the return to work program must be approved by treating doctors and an OT assessment of the workplace and intended work duties undertaken prior to the return to work program commencing.
All return to work programs should be monitored by the workers' compensation insurer whilst the program is underway to ensure the worker is coping with the return to work program and is not being placed at risk of suffering further injury.
Non-compliance can also mean your workers' compensation benefits are cut off
If you are required to undergo a return to work program during your workers' compensation, you should make every effort to comply with the program as injured workers have a duty to do so under workers' compensation legislation. Non-compliance can also mean your workers' compensation benefits are cut off. However, a worker is not expected to work when they are not fit to do so, or to place themselves at risk of sustaining further injury.
If this occurs, you need to see your doctor, contact the return to work coordinator or your work supervisor and advise of the problems you are experiencing so the program can be adjusted to meet your work capacity.
Who pays me during my return to work program?
The workers' compensation insurer pays you during your return to work program but if you are able to perform meaningful duties in the course of the program with your employer, then the employer will be required to pay you for those hours you have performed such work. It is therefore usually a mixture of payments from your employer and the workers' compensation insurer.
Where the return to work is with a host employer because your employer did not have suitable duties for you to perform, then the workers' compensation insurer will pay your wages during the return to work program (as per your entitlements under the statutory scheme).
What happens at the end of my return to work program?
If you have successfully completed a return to work program and are able to return to work with your employer, unless there is ongoing treatment still required for your injuries in order for doctors to deem them stable and stationary, your workers' compensation claim will come to an end at that time.
If there is further treatment or rehabilitation doctors consider you need before your claim should end, then it will remain open until that treatment is complete. However, your wage benefits will stop as you have returned to work, and your wages will once again be paid by your employer.
If it is the case that you are unable to return to your normal duties or work hours with your employer, once your workers' compensation claim ceases, it will be a matter for your employer as to whether it is willing to provide you with employment in alternate duties or reduced work hours suitable to your injuries.
If it is not able to provide you with this, then the employer is in some circumstances entitled at law to cease your employment as you are no longer able to undertake the work you were engaged to perform.
If this occurs, unfortunately, there is no obligation upon the workers' compensation insurer to find you alternate work more suitable to your injuries or to continue with your wage benefits if your injuries are stable and stationary and your workers' compensation claim has ended.
At the end of your workers' compensation claim
If at the end of your workers' compensation claim, you are not able to return to your work with the employer, you should contact Centrelink as soon as possible to register for Disability or Newstart Benefits.
Alternatively, you may hold disability insurances attached to your superannuation scheme or through other private insurance arrangements. You should make enquiries with these entities as to whether you have a claim for income protection payments whilst you are unable to work due to your injuries. If you are suffering severe financial hardship, you may be able to draw on your superannuation, and you should make enquiries with your superannuation fund to see how you can apply for release of funds in the case of hardship.
If you have a mortgage, credit card repayments or car repayments etc, you may have disability insurances attached to your mortgage or loan agreements which can assist you whilst you are unable to work due to your injury. You should look into this with your lenders.
Common Law Rehabilitation and Return to Work Policy
When a workers' compensation insurer receives a common law claim, they will assess the worker’s current employment status and if any rehabilitation services are required. If the worker is not employed, clarification will be obtained from the worker (through their solicitor if one has been appointed) about their ability to participate in a return to work program. When it is confirmed that the worker is able to participate in the program, or it has been identified that further rehabilitation is necessary and reasonable, the worker will be contacted by the workers' compensation insurer to discuss options.
A worker referred to a return to work program must satisfactorily participate in the program, otherwise the worker's common law damages may be reduced. What comprises satisfactory participation will depend on the contents of the plan but may include: active job searching, attending appointments, participating in job preparation, training etc. as arranged and considered reasonable.
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