Can WorkCover force you back to work?
No, WorkCover cannot force you back to work. You should only be returning to work when you are certified medically fit to do so.
In order to return to work, you’re treating doctor needs to certify that you have a capacity to return to your full pre-injury duties or alternatively, a capacity for modified duties.
If you are certified fit for modified duties, then there must be suitable duties in the workplace that you can do, taking into account your injury. If there are no suitable duties, then you should not be returning to work and you are entitled to be paid WorkCover Payments.
Do you have the right to refuse to return to work?
Yes, if you believe that, medically speaking, you should not be returning to work at the current time due to your work related injury.
If you believe that you are being asked to return to work when you are not medically fit to do so,
One of the first things that you should do is check your most recent certificate of capacity.
What does it say?
Does it say that you have a capacity to return to your full pre-injury duties?
If it says this, then you have an obligation to return to work. If you disagree with the fact that you have been certified as having a capacity to return to full, unrestricted, pre-injury duties, then you should make an appointment with the medical practitioner that certified you, to discuss the matter.
Does your certificate say that you have a capacity for modified duties?
If it does, then you have an obligation to return to work provided that the employer is able to offer you modified duties that are in line with any restrictions that you’re treating health practitioners say should apply.
For example, if you have a shoulder injury and example of a restriction that might apply is that you are not to lift anything over 10 kg in weight.
If you do not believe that the employer has duties that are suitable, then you should speak to your treating doctor about this.
Treating doctor should be made to understand what the work is that you are required to do so they can properly certify you in relation to your work capacity.
If there is an issue in terms of you being asked to do work that does not match up with what was agreed in your return to work plan, then you should ask your doctor to write a letter addressing this.
This letter should be provided to the WorkCover insurer and your employer.
One thing worth mentioning in relation to modified or suitable duties is The employer is only required to offer you suitable duties for a period of 52 weeks.
If you are not able to return to your pre-injury roll after a period of 52 weeks, in certain instances the employer can seek to terminate your employment.
If you are certified as having no capacity for work, then you have the right to refuse to return to work at this point in time.
What do occupational rehabilitation providers do?
The WorkCover insurer may organise an occupational rehabilitation provider to work with you.
Their stated role is to help you and your employer to get you back to work.
They will speak to you from time to time about how your injury is progressing and they will also wish to discuss your work capacity with your treating doctor.
They will also help your employer to identify suitable employment options for you.
Many people who do not have a work capacity and who are not yet ready to return to work given their injury wonder why they need to be speaking to occupational rehabilitation providers.
As part of the WorkCover system, as an injured person there are a number of return to work obligations that you have (discussed further on) and one of those is to actively use an occupational rehabilitation service and cooperate with the provider of that service.
So, even if you are not yet medically able to work, you are required to have discussions with an occupational rehabilitation provider from time to time (at reasonable intervals).
What are my ‘return to work obligations’?
Under the law you have a few obligations in relation to returning to work.
- You must make reasonable effort efforts to return to work, whether that be in pre-injury employment or suitable employment.
- You must make reasonable efforts to participate and cooperate for your return to work.
- You must participate and cooperate in assessments of your work capacity
- As mentioned above, you need to work with an occupational rehabilitation service if one is provided
In certain circumstances, if the insurer believes that you are not meeting your return to work obligations, they will discuss this with you and potentially they could take action that might impact your weekly payments (i.e. terminating them).
Keep in mind however; just because their obligations on you in terms of a return to work, this does not extend to returning to work when you are not medically fit were able to.
WorkCover cannot force you to go back to work when you are not medically able to do so.
If you feel as though you are being pushed to go back to work when you’re not medically ready, you should speak to your doctor about your concerns.
If you have a lawyer, you should also discuss your concerns with them.
Do you have an obligation to do what you can and make reasonable efforts to return to work in either your pre-injury duties, Suitable duties, or other work.
However, this does not extend to returning to work when you are medically not able to do so and potentially aggravating your work related injury.