Return To Work Obligations Of Injured Workers, Insurers, And Employers In NSW Workers Compensation

It can be devastating and overwhelming to experience a workplace injury, especially when you do not know what lies ahead.

This article may be useful if you:

• are receiving workers compensation payments;
• have been certified as having some capacity for work or no capacity for work;
• have been offered light duties, modified duties or suitable duties;
• have been contacted by a rehabilitation provider; or
• have been asked to attend a case conference.

If you have been injured at work in NSW, you may be asked to take part in a return to work process involving your employer, the workers compensation insurer, your treating doctor, a rehabilitation provider and sometimes case conferences. This article explains what those steps usually mean, what your obligations are, and what rights you should be aware of.

In particular, we explain injury management plans, suitable duties, rehabilitation providers and case conferences in plain English, so you can better understand what is expected of you and when you may need legal advice.

If you are injured at work, the NSW workers compensation system is intended to support your treatment, recovery and return to work where it is safe for you to do so.

During the return to work process, you, your employer and the insurer each have obligations under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”). It is important to understand both what you are expected to do and what the insurer and employer are required to do.

What are my obligations to return to work as an injured worker?

If your doctor says you have some capacity for work, you must make a reasonable effort to return to work in a way that is consistent with your medical restrictions. What is “reasonable” will depend on your circumstances, including your injury, treatment, restrictions and the duties being offered.

If the insurer considers that you have not made a reasonable effort, it may suspend, terminate or reassess your entitlement to weekly payments.

If you cannot return to your pre-injury role, you must consider ‘suitable duties’ (sometimes called ‘light duties’ or ‘modified duties’).

If your doctor says you have no capacity for work, your focus should generally be on treatment and recovery. Over time, the aim may be to return to some form of safe work when your injury and medical restrictions allow.

You may also be required to take part in the preparation of an injury management plan, often called an IMP. An IMP sets out the steps that are intended to support your recovery and return to work.

In practical terms, this means you should keep providing up-to-date certificates of capacity, attend reasonable appointments connected with your claim, communicate about your work capacity, and make genuine efforts consistent with your medical restrictions. However, you should not feel pressured to perform duties that are unsafe or outside the restrictions certified by your treating doctor.

What are the insurer and employer’s obligations in respect of return to work

Your employer and the insurer must help facilitate a safe return to work process. This should be done in consultation with you, your treating doctor and, where appropriate, other health professionals such as a rehabilitation provider.

An IMP should identify the goals, actions, supports, timeframes and responsibilities for everyone involved. In simple terms, it should help explain what steps will be taken, who is responsible for each step, and how your return to work will be managed safely.

The insurer, employer and rehabilitation provider are entitled to attend scheduled case conferences in support of your return to work. They are not, however, entitled to attend your medical appointments with your treating doctor.

If you are unsure whether a proposed return to work plan is safe, suitable or consistent with your medical restrictions, you should seek medical advice.

If you cannot return to your pre-injury duties, your employer may need to provide suitable duties. Suitable duties are sometimes called light duties or modified duties. They should take into account your injury, capacity, restrictions and workplace circumstances. For further information about suitable duties, please refer to Suitable Duties Obligations and Alternate Employment in Workers Compensation.

Who can assist with your safe return to work?

Your nominated treating doctor plays an important role in the return to work process. They provide information about your injury, treatment, capacity for work and restrictions.

It is important that your treating doctor understands your usual duties and any modified duties being proposed. Your certificates of capacity can affect your return to work plan and your entitlement to weekly compensation, so they should accurately reflect your capacity and restrictions.

For further information on certificates of capacity, please see Returning to work: Why your Certificate of Capacity matters which outlines what should be included, and how they impact your rights and claim.

A rehabilitation provider may also be involved. Their role is to help identify what work you can safely do and what support may be needed for you to recover at work.

Rehabilitation providers must be approved by the State Insurance Regulatory Authority (SIRA), in order to assist in facilitating your return to work.

Their role is to:

• assess the activities you can currently perform;
• assess any available suitable work options;
• advise about modifications for the work environment or work practices to reduce work demands;
• design a recovery at work plan with yourself, your employer and treating doctor;
• advise about work options when you are unable to recover at work with your pre-injury employer;
• facilitate workplace discussions if a workplace relationship issue is impacting your recovery at work;
• assist you in finding work with a new employer.

Rehabilitation providers can also recommend re-training courses to assist in the return to work process, which can be paid for by the workers compensation insurer if ‘reasonable and necessary’.

The insurer will likely appoint you a rehabilitation provider if you do not already have one of your own. They are not obliged to do so in circumstances where they have declined liability for your workers compensation claim.

You have the right to choose your own rehabilitation provider, if you wish to do so.

If you are uncomfortable with the rehabilitation provider appointed by the insurer, or you consider that the recommendations do not reflect your injury or restrictions, you should raise this promptly and consider seeking legal advice about your options.

What is the purpose of a case conference?

An IMP is often discussed during a case conference. A case conference is a meeting arranged to discuss your recovery, capacity for work, suitable duties and return to work plan. The aim should be to make sure that the plan is practical, safe and consistent with your medical restrictions.

Before a case conference, it is useful to ask who will attend, what will be discussed, and whether any decisions will be made about your duties, hours, treatment or weekly payments. You should also make sure your treating doctor has an accurate understanding of your symptoms, restrictions and work duties.

A case conference will usually involve you, your nominated treating doctor, the insurer, your employer and/or your rehabilitation provider. It is important to note that an employer is not generally permitted to attend your medical appointments, and they require your consent to do so.

When should I get legal advice?

You should consider seeking legal advice if your weekly payments are being reduced or stopped, you are being pressured to return to work before you feel medically ready, your employer says there are no suitable duties, the insurer disputes your claim, or you disagree with the recommendations made by a rehabilitation provider.

A safe return to work depends on each party understanding and meeting their obligations. If you have been injured at work and need help with an injury management plan, suitable duties, a rehabilitation provider, a case conference or a decision made by the workers compensation insurer, Carroll & O’Dea Lawyers can provide advice about your rights and entitlements.

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.