Managing permanently injured employees and return to work obligations

WorkCover and where is the starting point in a claim?

The first question, and basic starting point, if an employee suffers either an injury or illness is whether this injury or illness arises out of or in the course of employment. The key test is ‘in the course of employment’.

This essentially is comprised of two factors:

1. Consideration of an incident, injury or illness simpliciter (in other words tying the illness or injury to an exact place, date and time).

2. A contribution factor (considering whether an illness or injury has occurred through gradual process, that is looking at the systems of work and whether they have contributed to the illness or injury over time).

Sections 20 and 21 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) deal with lodging a claim and acknowledging a claim.

It is important that employers have available for employees, material and paraphernalia about what to do when an injury occurs. Paraphernalia can usually be found in staffrooms, kitchens or HR and payroll departments.

What do we mean by contribution factors?

Essentially, this is a situation where an injury or illness is not caused by a specific incident but overtime by work related factors. The contribution at least in Victoria must be a significant factor.

What are the most common types of injuries?

Historically, most injury claims were in fact physical but nowadays this has changed with psychiatric injury claims being on the rise. This can be attributed to industrial and economic factors such as the gradual decline in manufacturing and the advent of the service economy.

What are the factors or key indicia that lead to workplace injuries?

These are varied.

For physical injuries, they are usually driven by incidents such as slipping or lifting heavy items. Unsafe use of machinery due to a failure of having safe operating procedures or non-compliance with safe operating procedures are also common causes of injury in the workplace.

This needs to be contrasted with psychiatric injuries and these are attributed to:

• high job demand;

• low job demand;

• poor support for struggling workers;

• poor workplace relationships;

• low role clarity;

• poor organisational change management;

• poor organisational justice;

• poor workplace policies;

• poor monitoring of workplace policies;

• poor environmental conditions;

• remote or isolated work;

• bullying and harassment;

• high workloads; and/or

• violent or traumatic events.

Further, in the post-Covid world we must now factor new challenges. This includes isolation, changes in work patterns and hours and demands as well as ergonomic considerations through home office set up.

How do employers address the growing trend of claims in a Covid-19 world as well as rise in psychiatric claims? Is there an onus on employers to be proactive?

Absolutely. The costs of inaction are alarming, both from the personal perspective of the impact of the injury on each employee who has suffered a workplace injury, the consequent disruption that such injuries cause to a workplace, as well as the significant monetary costs associated with workplace injury claims.

For instance, Safe Work Australia in a report, published on their website dated 7 June 2018 (pre-Covid 19 lockdowns), addressed mental illness in the workplace, and had estimated that absenteeism costs in Australian workplaces were in the order of $6 billion a year.

This doesn’t even factor in the costs associated with physical injuries.

So, there is an onus on employers to not only be cautious but proactive as well as innovative.

What obligations does the WIRC Act impose on employers once a claim is accepted? Specifically, what is the employment obligation period?

Very stringent ones. The obligation on employers is to guide and assist employees through this process.

The philosophy is that the employee cannot be discriminated against and on this basis, we have the employment obligation period.

What do we mean by the employment obligation period?

Pursuant to Section 103 and 119 of the WIRC Act, this is defined as a period of 52 weeks in which the worker has an incapacity for work contributed to by the work-related injury, and commences on whichever of the following dates is earliest:

1. The date the employer receives the first certificate of capacity.

2. The date the employer receives a WorkCover claim.

3. The date the employer is notified by WorkCover that a claim for weekly payments has been made.

4. The date the employer is notified by WorkCover that a certificate of capacity has been provided.

Employers must note that the 52 weeks do not have to run consecutively. There may be periods where the worker is able to work pre-injury duties and hours, and these weeks are not counted as part of the employment obligation period.

During the employment obligation period, s103 of the WIRC Act requires that an employer provide suitable employment or pre-injury employment, depending on the capacity of the worker.

If a claim made by an employee remains active after the employment obligation period finishes, the employer is no longer required to provide suitable work or pre-injury work, and if the employee is unable to fulfil the inherent requirements of the employee’s position then the employer may take steps to terminate the employee’s employment. This is not a straightforward process, as consideration must be given to various pieces of discrimination legislation before taking such a step. Accordingly it is beneficial to obtain legal advice before any step is taken to terminate an employee who is unable to fulfil the inherent requirements of their position.

Is the objective to protect the employee’s employment and plan return to work?

Yes, absolutely. A successful return to work (RTW) after an injury involves:

• identifying any hazards thought to have led to the original injury, or which may be present in new duties and taking all reasonable steps to eliminate or minimise these;

• maintaining regular contact with the injured worker, particularly if they are away from the workplace, which is essential for ensuring effective communication and support;

• effective consultation with everyone involved in the recover at work (RAW) /RTW process including, the injured worker, managers/supervisor, case manager, injury management advisors and treating medical practitioners;

• clearly establishing the injured worker's capacity to work; what they can safely do and when they are likely to return to pre-injury work duties;

• clearly identifying what support is required and who is responsible for each action;

• maintaining appropriate confidentiality, and

• considering any other factors that may impact on the worker's capacity to work for example, medication, travel, and any support services.

Generally, workers are required (and it is always best practice) to actively participate in the development of their RTW plan. This includes talking together about what work they think they could do and the support they may need to help them to RTW.

Employers can promote an effective RTW process by ensuring their managers, supervisors, HR personnel and RTW coordinators are appropriately trained and qualified. Having the knowledge and capability to assist, support and communicate with the injured employees and health professionals is important throughout the planning and implementation processes.

Essentially, the RTW role that must be offered within this period is one that is available and safe and where it does not lead to risk of reinjury.

Independent medical opinions are often essential, specifically from treating specialists such as orthopaedic surgeons, neurosurgeons or psychiatrists.

However, there are many instances where a GP’s medical certificate will suffice.

What should the RTW plan look like?

It should be in the form of a document. Not a matrix but something resembling a roster.

It should cover the type of work that will be modified and what hours must be worked, how many breaks are required and a brief summary on what medical information it is based on.

An effective workplace-based injury management and rehabilitation includes:

• a plan for maintaining contact with the injured worker;

• identifying and providing suitable duties for example, modified or alternative work, and hours of work including breaks;

• providing appropriate support, aids and modifications to the workplace for example access to rest facilities and support programs;

• providing access to professional counselling or other medical treatments or therapies;

• briefing co-workers on psychological health and how to support the injured worker – this should be done in consultation with the injured worker and respecting their right to privacy;

• providing graduated RTW processes including days and hours of work, and

• scheduling reviews to monitor progress.

Are employers required to consider and consult the injured worker in this process?

Absolutely. All workers compensation jurisdictions recognize this.

Further, the OHS Act 2004 (Vic) placed stringent duties on both employer and employee with regard to safety, so in a sense there is no way of escaping this.

Aside from the employer and the employee, who are the other key parties in the RTW process?

1. Treating medical practitioners.

2. Insurers.

3. Claims managers.

4. Independent specialists.

5. Lawyers.

What happens if the medical evidence or medical certificate does not support a RTW?

The end answer is that per OHS duties there can be no RTW.

The obligations to ensure a RTW cannot override the statutory requirements under the OHS Act.

Could this mean that the employee may be terminated after the employment obligation period expires?

Unfortunately, yes, but as set above this decision should not be taken lightly or arbitrarily. If there is no capacity for work and no medical evidence to support otherwise, then the employer must take risk mitigation steps to prevent an OHS breach as well as a further injury or worsening of the existing injury.

The decision must consider the totality of the medical evidence and this where it may be necessary to involve a specialist.

Employers should implement a step by step process that involves the following:

1. What is the injury and prognosis? Is it stable?

2. What are the treatment options?

3. Can the injury be accommodated by suitable and alternative duties?

4. Identify the OHS risks to the employee, other employees and stakeholders?

5. Consider the totality of the medical evidence and ensure it is current

6. Meet with the employee to discuss the information gathered and consider any response from the employee.

A failure to engage in such a process is likely to proceed to a challenge to any decision to terminate an employee who is unable to fulfil the inherent requirements of the employee’s position.

Takeaway points

Aside from regular review, then it is the three C’s – compassion, communication and consultation.

The aim of the WIRC is to ensure that the injured employee returns to work and where this will not be possible it is to treat them with as much dignity as possible, particularly in circumstances where it is necessary to terminate an employee’s employment because that employee is unable to fulfil the inherent requirements of their position.  

For further information please contact:

Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal

Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal