Resolving disputes over ‘suitable duties' in New South Wales Workers' compensation claims – what you can and can't do at work after an injury

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What can be done to address disputes regarding suitable duties in NSW workers' compensation claims?
Australia Employment and HR
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In New South Wales (NSW), workers' compensation claims often involve disputes over suitable duties. These disputes arise when there's a disagreement between you as the injured worker and your employer or insurer about the tasks you can perform while recovering from your work-related injury. Resolving these disputes requires a clear understanding of the legal framework, as well as open communication and negotiation. Here's a detailed look at what can be done to address disputes regarding suitable duties in NSW workers' compensation claims.

Understanding suitable duties

'Suitable duties' refer to tasks or responsibilities that you, an injured worker, can perform at work while recovering from your work-related injury. These duties are typically modified or alternative tasks that accommodate your medical restrictions and capabilities during your rehabilitation period. Suitable duties and/or reduced hours of work aim to facilitate your return to work in a safe and manageable manner. The opinion of your treating doctor who provides Work Capacity Certificates is also important in this respect.

Legal framework in NSW

The workers' compensation system in NSW is governed by the Workers Compensation Act 1987 (NSW) (WCA) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWCA). These outline the rights and responsibilities of injured workers, employers, and insurers concerning suitable duties and return-to-work plans.

Section 49 of the WIMAWCA confirms that employers are mandated to provide suitable employment to an injured worker.

Specifically, section 49 (2) confirms that:

'The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury.'

These obligations remain, regardless of the acceptance of liability under section 41A of the 1998 Act.

Steps to resolve a dispute

i. Consultation and communication

The first step in resolving a suitable duties dispute is to start an open dialogue with your employer. This involves discussing your medical restrictions, capabilities, and potential suitable duties that align with your recovery plan. It is obviously essential that employers are aware of their obligations, and it is always recommended that a worker request the reinstatement of suitable duties tailored to your capabilities. Employers are required to search for suitable duties for injured workers within their specific organisation. Furthermore, your employer must show that they have taken reasonable steps to find you suitable work, even if the result is that there is no suitable work available for you.

ii. Dispute resolution mechanisms

If an initial discussion with your employer fails to obtain for you the required outcome, it may be necessary to progress your matter by referring it to the Personal Injury Commission (PIC). To undertake this step, you are required to follow a structured process for the resolution of your dispute. To be successful in your claim you must have relevant and sufficient supporting evidence prior to filing your application in the PIC.

iii. Medical assessment

It may be prudent that you obtain an independent medical assessment to clarify your medical condition, capabilities, and any restrictions. This assessment provides an objective evaluation that helps in determining suitable duties that are safe and appropriate for you.

You will also need to attach supporting evidence to your PIC application which may include supportive medical evidence, a vocational assessment, and a comprehensive statement which details your capabilities. These statements should be supported by medical or vocational evidence and should highlight the specific duties you can perform within your restrictions. To further support your dispute, you can gather evidence of job vacancies in your employer's organisation to reinforce any availability of suitable roles available to you.

iv. Expedited assessment process

If your matter is referred to the PIC, it undergoes an Expedited Assessment. During this process, an appointed Registrar of the PIC may make recommendations aimed at resolving the dispute in a timely manner. It is essential for your employer to demonstrate adequate effort having been undertaken to seek suitable duties where reasonably practicable.

Why is timely resolution important?

Timely resolution of any dispute regarding suitable duties is crucial to facilitate your return to work and to ensure your ongoing rehabilitation and recovery. Any delay in resolving your dispute can impact your physical and emotional well-being, as well as your ability to successfully re-enter the workforce.

It is common practice that your employer may rely upon section 49(3)(a) of the 1998 Act, which provides that the requirement to provide suitable employment does not apply if 'it is not reasonably practicable to provide employment in accordance with this section'. As previously mentioned, you can contest this assertion if you are able to obtain relevant evidence of your work capabilities and the availability of suitable roles within your employer's organisation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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