WorkCover and returning to work (Victoria)

The WorkCover legislation in Victoria requires the employer and the worker to cooperate to try and return the injured worker back to work when it is safe to do so.

This can be on the basis of reduced hours or duties (modified duties) or on full duties, depending on the extent of the incapacity.

A return to work (RTW) plan needs to be developed in consultation with the injured workers treating doctor – usually the general practitioner who is writing the workers’ certificates of capacity.

The obligation to offer suitable duties under WorkCover legislation runs for 52 weeks.

After that time there is no longer a legal obligation to offer modified duties under WorkCover law, but there may be other laws, such as anti-discrimination laws, that protect the worker’s position.

This page will explore the issue of returning to work further.

Right to return to work

Injured workers do have the right to return to work when it is safe to do so.

There are exceptions to this, mostly to do with long-term injury cases where the incapacity for full duties extends beyond the first 12 months.

After the initial 52-week period has finished there is no longer an obligation on the employer to offer suitable duties and as such no right under WorkCover legislation for a worker to return to work.

There may well be however obligations on the employer created by employment laws or discrimination laws.

For example, under some anti-discrimination laws, an employer is obligated to make “reasonable” adjustments to an employees work if it allows them to continue or return to working in the workplace.

Obligations on employers and employees

Employers have an obligation to offer modified duties for the first 52 weeks after the injury occurred.

This does not mean that you are guaranteed to be able to return to work while injured. It will depend upon what the injury is and what modifications or alternative roles can be offered by the employer.

Employees have an obligation to engage in the return to work process including the development of a return to work plan.

They have an obligation to make reasonable attempts to return to work when safe to do so.

WorkCover return to work plans

These are developed between the employer, worker and treating doctor (usually the GP).

Often it is the employer that will formulate a proposed return to work plan based upon the certificates of capacity the worker is getting, as well as any vocational assessment that they might have obtained.

The draft return to work proposal is sent to the treating doctor to review with the patient.

The treating doctor does not have to agree to the proposed return to work plan if they do not believe that the worker will be able to safely perform the duties proposed.

The treating doctor and the injured worker are allowed to propose modifications to the draft plan based on medical considerations.

How is the worker’s capacity for work assessed?

The main method of assessment is the opinion of the treating practitioner (generally the GP) as expressed in either WorkCover certificates of capacity, or in reports that they provide to the insurer.

The WorkCover insurer may also seek an opinion of an “Independent Medical Examiner” such as an orthopaedic surgeon, psychiatrist or rehabilitation consultant.

In situations where a return to work may be difficult, a rehabilitation consultant may be engaged to speak to the employer, doctor and worker to try and find suitable duties for the worker to perform.

When the worker cannot be returned to employment

There are two main scenarios where a worker might not be able to return to work after an injury.

The worker is fit for modified duties in the workplace, but the employer cannot provide duties that fit the restrictions.

Sometimes this may be because the restrictions placed on the workers’ capacity are so significant that no work can be found that would be suitable.

Otherwise it could be because the work is so strenuous that there are no duties available that could be done on a modified basis.

This however is quite rare, as even if a worker cannot perform the regular heavy duties that they may do, there is generally other lighter work, such as administrative or cleaning work that can be done.

It is often the case that the larger the employer is, the more likely there will be alternative duties that can be offered to the worker to complete, as there is a wide range of roles that the injured worker could perform than in a small business.

The worker is not fit for any duties

In some cases where the injury is particularly severe, the worker will not be fit for any duties, at least for a period of time.

In many cases, the worker will initially be unfit for all duties after an injury, but over the coming days, weeks or months will be fit for some modified work.

For example, someone that broke their ankle while working and needed surgery, would be unfit for all work prior to having the surgery and for some time afterwards.

Once some time for recovery had occurred, the worker would then be able to perform some modified duties.

Ending employment while on WorkCover

Either the worker or the employer can end the employment relationship while on WorkCover or on a return to work plan.

The consequences for the worker and employer are covered in this blog. Before a workers’ long-term capacity is known, it would be very risky for a worker to quit while in receipt of weekly payments.

An employer should not terminate a worker while they are still recovering from an injury and it is not clear what the long-term capacity of the worker will be.

There is not really anything to stop an employer terminating at any time, but remedies will be available to the worker to challenge the dismissal and potentially obtain compensation. There may also be fines for the employer.

Conclusion

WorkCover legislation governs the return to work process. At least in the first 52 weeks after an injury occurs, the employer has an obligation to provide suitable duties to the worker to allow them to return to the workplace.

The worker has an obligation to engage in the return to work process and to return to work if safe to do so.

return to work plans are developed with input from three parties – the employer, the worker and the worker’s treating medical practitioner.