Confusion, unsurprisingly, often arises when an injured worker is required to participate in a return to work program.
Questions we are often asked include:
- What are the obligations of the employer?
- What are the obligations of the injured worker?
- What is the role of the nominated general practitioner?
- What is the role of the rehabilitation provider?
We will attempt to answer some of these questions.
1. The obligations of the employer
The obligations of the employer under return to work programs are listed in the Guidelines for Workplace Return to Work Programs published by the WorkCover Authority of NSW. These include, but are not limited to, the following:
- Not to dismiss an injured worker due to injury within 6 months of the first incapacity for work.
- Provide workers with adequate information about workers compensation and return to work procedures
- Provide workers with information about their choice of nominated treating doctor and how to change rehabilitation providers
- Make suitable duties available to injured workers
Accommodate medical restrictions resulting from the work injury
- Notify the insurer immediately if unable to provide suitable employment for a partially incapacitated worker
- Participate and cooperate in the establishment of an injury management plan for an injured worker
- Cooperate with the insurer in providing retraining or different job opportunities to an injured worker
2. The obligation of a worker
A worker is obliged to participate and cooperate with reasonable requests for rehabilitation. If a worker fails to participate in a reasonable request, weekly payments may be suspended until the worker participates in such requests. If you are in doubt about your obligations, you should seek legal advice.
We are often asked if a worker is obliged to attend upon a “company” doctor after an injury. A worker is not obliged be treated by a company doctor, nor is the worker obliged to permit a supervisor or manager to attend consultations with their nominated treating doctor. The only time another person can attend upon a consultation with a nominated treating doctor is with the permission of the injured worker.
We usually suggest that a worker appoint their own family doctor as their nominated treating doctor.
A worker is also entitled to nominate their own rehabilitation provider rather than just accepting the insurer’s provider.
3. The obligations of the insurer
The obligations of an insurer include consultation with the worker in the formulation of injury management plans, and consultation with all parties when referring a worker to a rehabilitation provider. The insurer must also advise the worker how to change rehabilitation providers.
4. The nominated treating doctor
The nominated treating doctor completes the worker’s medical certificates, and participates in discussions concerning injury management and return to work.
The role of nominated treating doctor also includes referral of the worker to appropriate specialists and other medical providers for the treatment of that worker’s work related injury. This is solely the responsibility of the nominated treating general practitioner and not, as we are often asked, a role that a rehabilitation provider should perform.
As the WorkCover Certificate of Capacity is one of many sources of information a rehabilitation provider uses when preparing a return to work program, it is imperative that the Certificate is completed appropriately by the nominated treating doctor and after consultation and careful discussion with the injured worker. We have experienced circumstances where a nominated treating doctor has completed a Certificate of Capacity in consultation with a rehabilitation provider, but not the injured worker! You should seek legal advice if this happens.
A worker can only change a nominated treating doctor after notice and an explanation is given to the workers compensation insurer.
5. The workplace rehabilitation provider
The workplace rehabilitation provider’s role is to ensure that the needs of both the worker and employer are met with regard to a return to work program. The workplace rehabilitation provider’s role, while the worker is still employed, is to facilitate a program where the worker may return to work with the employer in a pre-injury duty capacity or alternate duties with the employer. This focus changes when employment is terminated.
We’re often asked if the role of the rehabilitation provider involves participation in treatment. Only the nominated treating doctor can direct the treatment of an injured worker.