5 most asked questions about ‘Return to Work’ programs

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.

Are your weekly workers compensation payments likely to change?

In 2012, government policy regarding worker’s entitlement to weekly payments of compensation changed.

One of those changes involved limiting the right to receive weekly payments to a maximum of 5 years.

October 2017 marks the fifth anniversary of these laws and so insurers are required to assess workers receiving weekly compensation payments to ascertain whether or not they will be able to continue receiving benefits.

How will these changes affect you?

If your whole person impairment assessment is:

  • Up to 10% – You’re entitled to claim medical expenses for up to 2 years after the date of the claim or the date weekly payments were last received, whichever is later.
  • Between 10% to 20% – You’re entitled to claim medical expenses for a period of 5 years after the date of the claim or the date weekly payments were last received, whichever is later.
  • Greater than 20% – You’re exempt from these changes and are entitled to claim medical treatment for life.

Importantly, these restrictions, don’t apply to compensation in respect of the provision of crutches, artificial limbs, hearing aids or spectacles, modification of a worker’s home or vehicle and secondary surgery.

The assessment of whole person impairment conducted by the insurer is not final however and if you are concerned about being assessed for this before the deadline, consult a workers compensation specialist like Masselos & Co (call directly on (02) 8268 3200 or via email info@masselos.com.au)


Understanding Work Capacity Decisions

As a result of far-reaching amendments made to the Workers Compensation Act in 2012, a workers compensation insurer is entitled to issue a Work Capacity Decision in relation to a worker who is receiving weekly payments of compensation.

If a workers compensation insurer issues a Work Capacity Decision, a worker’s weekly payments of compensation can be reduced or stopped altogether and the decision cannot be challenged in the Workers Compensation Commission.

If the workers compensation insurer intends to issue such a decision, prior notice should be provided to the injured person in writing.

Unfortunately, there are only very limited rights of appeal in respect of a Work Capacity Decision. The first step is to ask the insurer for an internal review. If that is not successful, then an application for merit review can be made to the WorkCover Authority within 30 days. A final avenue of appeal to the WorkCover Independent Review Officer is only available where there has been some procedural error made by the insurer. Presently, legal costs cannot be recovered in relation to these appeals, however the NSW Government is currently consulting on an amendment to the Regulation that will open the way for legal representation in these matters, and these amendments should take effect later in the year.


These provisions do not apply to excluded workers including police officers, paramedics and fire fighters, coal miners, volunteer bushfire fighters, emergency and rescue service volunteers, people with a dust diseases claim under the Workers Compensation (Dust Diseases) Act 1942, workers who are currently receiving weekly payments of compensation as a result of injury under the 1926 Act, or seriously injured workers as defined by the legislation.



6 steps to making a NSW Workers Compensation claim

Injured workers receive a lot of information from employers, general practitioners and claims managers when they first report an injury.

For most people, this information can be overwhelming.

We recommend the following steps be taken immediately when a work related injury occurs:-

Step 1 – Report the injury in your employer’s injury book 
If there is no injury book at your workplace, provide your employer with written details of your injury and keep a copy of your written account of the injury. Your injury can be reported by email to your employer.

Step 2 – Complete a notice of injury form and give it to your employer
If you are unable to obtain a notice of injury form go to step 3.

Step 3 – Consult your health care provider
Consult your own general practitioner on the day of injury for a WorkCover NSW – Certificate of Capacity.

We are told by some of our clients that representatives of employers/insurers insist on attending these medical appointments with the worker. There is no obligation on the worker to allow this.

Furthermore, we are told, in some circumstances, that an employer will insist that the injured person attend upon the company doctor for treatment.

You are not obliged to do so and in fact you should attend your own general practitioner for all treatment advice.

Step 4 – Request a workers compensation claim form from your employer

Step 5 – Complete and submit your claim form
Complete the claim form, attach your WorkCover NSW – Certificate of Capacity to that claim form and submit it to your employer.

You should always retain a copy of that completed document for your records.

Step 6 – Don’t provide statements without consulting your lawyer first
You may be approached by an investigator. You are not obliged to provide a statement to an investigator and you should not do so without contacting your lawyer.

6 Things to do if you’ve been injured in a Motor Vehicle Accident

1. Report the Accident to Police
If either party is injured, it’s a legal requirement to notify the police.  You can do this either by reporting to a nearby police station or by calling the Police Assistance line on 131 444.

Make sure that you write down the COPS Event Number assigned by the Police to confirm that the accident was reported.

2. Submit an ACCIDENT NOTIFICATION FORM within 28 days
If either party is injured and regardless of whether or not you were at fault, you may be entitled to claim up to $5,000 in compensation for treatment expenses and economic losses as a result of your injury in the six months following the accident.  You can download the relevant Accident Notification Form here.  However, before you lodge your form, make sure you have a Medical Certificate completed by your doctor.

Don’t delay, this paperwork has to be submitted within 28 days.

3. If either party is injured, consult your doctor
It’s important that you consult your doctor as soon as possible after the accident and that you report to your doctor all of your symptoms, no matter how minor they might seem at the time.  This will help ensure that your treatment and rehabilitation progresses efficiently and without unnecessary delays.  It will also avoid disputes with the insurer should an injury that you considered minor at the time of the accident become more of a problem as time goes by.

4. Lodge a PERSONAL INJURY CLAIM FORM within 6 months
If you were not at fault in the accident and you sustained an injury, then you must lodge a Personal Injury Claim Form and its accompanying Medical Certificate within six months of the date of accident.  The Personal Injury Claim Form can be downloaded here.  The claim form is a lengthy document and you should consider obtaining legal advice before you lodge it.  The claim form must be lodged with the compulsory third party (CTP) insurer of the vehicle who was at fault in the accident.  If a number of vehicles were involved in the accident and you are not sure which one was at fault, it may be necessary for you to lodge separate claim forms and medical certificates with the CTP insurers of each of those vehicles.  The Personal Injury Claim Form should not be lodged without the required Medical Certificate completed by your doctor.  While late claims may be made where a full and satisfactory explanation can be provided, these applications can be difficult, time consuming and they often are not successful.  Lodging a Personal Injury Claim Form and Medical Certificate within six months of the accident does not oblige you to proceed with your claim, however it protects your ability to claim damages in the future, and for that reason it is prudent to lodge the form in most, if not all, circumstances.

5. Find out if you have other rights to compensation
You might be entitled to claim benefits from other insurers in addition to the benefits under the motor accidents legislation.  For example, if the motor accident occurred whilst you were in the course of your employment, you may also be able to claim workers compensation benefits.  Similarly, some workers are still able to claim benefits for injuries sustained in the course of a journey to or from work in certain circumstances.  You might also be entitled to claim benefits under a private insurance policy, including insurance policies that may be available to you because you are a member of a superannuation fund.  Claiming other benefits doesn’t stop you from lodging a claim under the Motor Accidents Compensation Act, however be aware that in certain circumstances, monies paid under those policies will need to be refunded should you ultimately recover damages from the CTP insurer.  For example, Medicare and private health insurers will usually pay for treatment expenses following a motor vehicle accident, but they will usually be entitled to recover those benefits when you ultimately receive damages.

6. Contact a specialist Personal Injury Lawyer
Public liability law is a complex and highly specialised area of law.  To make sure you get the best possible outcome for your case, consult an expert personal injury law firm like Masselos & Co (call directly on (02) 8268 3200 or via email info@masselos.com.au)