Workers Compensation Survival Kit – Part 4

In Part 4 of the Workers Compensation Survival Kit, Adelaide lawyer Mal Byrne writes about the rehabilitation aspect of a workers compensation claim.

So, you have lodged your claim, the claim has been investigated and accepted, but your injury is serious and you are not going to return to work in the short term.  If you are at that point, you have now entered the rehabilitation phase of your claim.  The rehabilitation of injured workers is a controversial issue in South Australia.  Rehabilitation is contracted out to private providers.  Some rehabilitation providers are better than others.  The goal (supposedly) of the rehabilitation case manager is to assist the worker in whatever way possible to return to work with his or her former employer doing his or her pre-injury duties.  If the worker will not be able to return to the worker’s pre-injury duties, the case manager should try and find alternative duties with the employer that the worker can do.

The key issue is your capacity.  Your capacity to work is determined by your treating general practitioner who has to set out in each workers compensation medical certificate provided whether you are completely unfit for work, fit for reduced hours and/or light duties, or fit for your pre-injury duties and hours.  If you reach a point where you are fit for your pre-injury and hours, the claims agent will stop your weekly payments and you hopefully return to your old work earning your pre-injury wages and live happily thereafter.  If you are certified fit for light duties or reduced hours, your case manager or your rehabilitation provider should liaise with your employer and get you back to work working within those restrictions.

If you are going to take some time to return to your full pre-injury duties, your case manager, rehabilitation provider, doctor and yourself are supposed to work together to get you back doing as much as possible.  You will have to sign a Rehabilitation and Return to Work Plan.  The Plan places obligations on yourself and the claims agent.  You will have to provide medical certificates on time, attend all medical and other appointments, comply with your treatment, attend any case conferences set up to discuss your rehabilitation or any work hardening or work experience placements that form part of the Plan.  You do not have to agree with everything in the Plan.  The Plan just has to be reasonable.  Sometimes, whether a Plan is reasonable can be the subject of dispute.  If you do not comply with your rehabilitation obligations, the claims agent can cut off your weekly payments.  Hence, it is important to provide your medical certificates on time as the claims agent often does not process fortnightly income maintenance payments without an up-to-date certificate and it is important to make an appointment to see a doctor in advance so your certificate never runs out.

The employer has an obligation to provide you with suitable duties if those duties are available.  This does not mean that the employer has to have a designated position where those suitable duties are available.  There does not have to be a vacancy at work.  Whether or not an employer has suitable duties for you used an issue between the employer and the claims agent and the rehabilitation provider. However, under the new Return to Work Act, a worker who gives written notice to the employer making himself or herself available for work within his/her capacity , but who is not being provided work by the employer, can apply to the SA Employment Tribunal for an order that the employer provide that work. Sometimes, if the employer is a small employer and is clear that the worker will never return to their pre-injury duties and if there is a financial burden on the employer to have to replace that worker and pay the worker to sit around doing duties that are not really contributing to the employer’s productivity, the claims agent and the employer can enter into an agreement where your employment is terminated and the claims agent takes on the responsibility of paying you, rehabilitating you and finding you suitable alternative employment.  The larger the employer, the less likely that Return to Work SA will agree to relieve the employer of its obligations as they consider that large employer should have more flexibility in accommodating injured workers in the long term.

There are several standard do and don’ts with injured workers and rehabilitation.

These are as follows:

1.Keep your medical certificates up-to-date.It is essential that you keep your certificates up-to-date.  If you do not, the claims agent may cut off your weekly payments.  If your certificate is late, the claims agent may pay you late which can be the difference between paying your mortgage on time and being late and incurring default fees.  Hence, make sure that you keep the certificates up-to-date at all times;

2.Do not resign. I have come across some workers who believe (the claims agent will not tell them otherwise) that if the doctor tells them that they will never be able to return to their old pre-injury duties, that they have to resign.  That is not true.  If you are in that position, the claims agent has an obligation to rehabilitate you and the employer’s obligation to provide you with work that you have the capacity to do.  It is not your fault.  If you resign, your weekly payments will be cut off as well as your rehabilitation.  You do not have to sacrifice your employment because you cannot perform your old duties.  It was not your fault that you were injured.  It is the obligation of the claims agent, your rehabilitation provider and your employer to act in cooperation with yourself and your doctor to find a pathway for you to keep working;

3. Do not commit any acts that would constitute serious and wilful misconduct.  While the employer has an obligation to keep providing you suitable duties, and you cannot be sacked simply because you are an injured worker, you do not have a licence to do what you like.  If you punch the boss, steal money, you can still be sacked on the spot for serious and wilful misconduct even if you are on workers compensation income maintenance top up payments.

Part 5 of the Workers Compensation Survival Kit will cover What Compensation do I get for my Pain and Suffering?

For a free initial interview about your workers compensation claim, contact us. TGB assists workers in South Australia, Western Australia and Northern Territory.