Take control and get injured workers back to work

Every day, Australian employers are faced with the imponderable question: What will I do with my injured worker? All Australian employers, even self-insured employers, are limited and controlled by a statutory insurance regime creating obligations upon employers and employees.

For far too long, only the employer’s obligations have been the focus of public discussion. Under Occupational Health and Safety legislation, Australian employers are obliged to provide a safe place of work. Under Australian Workers’ Compensation legislation, employers are obliged to return employees to work and create an appropriate return to work program. But what obligations do employees have?

Last week, while travelling to Sydney, I was speaking to an owner of an emerging SME who expressed frustration that he received Certificates of Capacity from injured workers’ treating practitioners that stated no more than “injured arm”, medically unfit”, “anxiety”, “work stresses”, “unfit for work”, etc.

He said he had no ability, after speaking to his insurer, to ascertain the true nature of the injury or illness, to defend and require the insurer to reject the claim and to determine what, if any, capacity the employee had.

I could understand his frustration. This is a common perception of employers in Australia. However, there is adequate law around to assist employers to ascertain the nature of the illness or injury and to determine what, if any, capacity an injured worker has.

Here are five things that an employer should know:

1. An employer is entitled to engage an appropriate return to work specialist to undertake a functional capacity examination immediately after or shortly after a person exhibits symptoms of injury or illness, makes a work related claim in respect of injury or illness or otherwise seems predisposed to an injury or an illness that could lead to a compensable claim.
2. Such a functional capacity examination, if used as an early intervention strategy, will dramatically reduce the likelihood the person will not return to pre-injury duties, will return the worker to full pre-injury duties more quickly and will have a significant position impact upon the employer’s workers’ compensation premium.
3. Where an employer holds unsatisfactory medical evidence, inaccurate medical evidence or contradictory medical evidence in respect of an injured or ill worker, they are entitled to obtain an independent medical examination to ascertain the nature of the injury or the illness, what, if any, capacity the injured or ill worker has and whether the injured worker will be able, either now or in the future, to return to their full pre-injury duties.
4. It is an underlying concept of both Occupational Health and Safety and Workers’ Compensation legislation throughout Australia, that consultation must be undertaken between employers and workers in respect of injuries. Therefore, merely sending a letter to a person requiring them to undertake an independent medical examination or a functional capacity examination is not sufficient.
5. Critical to all of the above is to have an appropriate system of return to work. That is, it must have the stated purpose of returning injured or ill workers as soon as possible to their full pre-injury duties. The focus of all the employer’s action must be to that end.

The net effect of having an aggressive return to work process will be a reduction in the severity and longevity of injuries, a more rapid return to full pre-injury duties and a significant reduction in workers’ compensation premiums.

The above process is the new “high water mark” of employer behaviour in asserting and exercising its obligations under Occupational Health and Safety and Workers’ Compensation legislation, while simultaneously requiring workers to comply with their return to work obligations under all Workers’ Compensation legislation, as it appears throughout Australia.

Andrew Douglas is the Managing Director of Douglas LPT, an integrated legal, HR, recruiting and training business. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He is the principal of the legal division of Douglas LPT and appears in courts, tribunals and Commissions throughout Australia.