Getting an employee back to productive work after an injury or illness is the objective of every employer – yet this goal is not as straightforward as it might first appear. Lisa Burrell reports
A successful return to work after illness or injury brings benefits to the employer, the employee and the community. However, it is important that employers understand the distinction between supporting an employee’s recovery from personal injury or illness, as opposed to work-related injury or illness, in order to best manage the level of introduced risk to their business.
In Australia, state and territory specific legislation governs workers compensation. In all states, there is broadly the obligation for employers to provide ‘suitable employment’ to employees injured in the workplace, with an accepted claim, for a specified period of time. Importantly, the obligation to participate in return-to-work plans applies whether or not a current ‘job’ exists, and an offer of suitable employment does not need to be to the workers pre-injury role.
There are benefits for all parties in actively managing claims, including identifying and providing suitable employment to injured employees. In particular, minimising the time lost from employment ensures least impact on the business’ WorkCover Premium. Effective claims management may involve questioning details or assessment of tasks through to scheduling regular independent medical examinations.
Employer’s role during the determination of liability process:
When a workplace-related claim is received a process is enacted to determine liability. This process is largely managed by the WorkCover Agent and many employers feel powerless to influence the outcome of the claim. Some employers may not realise that they have an opportunity from the outset to influence this process to ensure that the extent of their liability is precisely determined. For example, Victorian employers can insist that a claim is ‘held pending’ for the legislated period of 28 calendar days while an independent medical examination (IME) is arranged to determine the exact nature of the medical condition and the recommended treatment and rehabilitation requirements.
A clear and objective diagnosis from the outset and a tailored treatment/ rehabilitation plan will assist in managing the risk to an employer of a claim dragging on and consuming excessive resources. An accepted claim for a ‘back’ injury, based on an ambiguous diagnosis, can cost an employer thousands of dollars. A definitive diagnosis of ‘strain/sprain at L4/L5’ can change the course of events dramatically and mitigate some of the risks associated with an ‘evolving diagnosis’ and potential entitlement to medical and like treatment for unrelated symptoms.
Employers should obtain specialised advice from the outset to maximise their opportunity of either contesting a claim, or ensuring only condition/s which arose as a result of the work place injury are accepted.
The above requirement to provide suitable duties is in contrast to the obligations under other pieces of legislation such as discrimination and industrial legislation that will still govern personal injury or illness. In these circumstances, employers need to have regard as to whether the employee can undertake the inherent requirements of their own role.
Obligations exist to consider ‘reasonable adjustments’ to an employee’s role, in order to allow the employee to undertake the inherent requirements of the role. This obligation does not extend to creating a role, or offering alternative duties.
Whether an employee can perform the inherent requirements of the role will be a case by case assessment on the integral and essential components of the role, and then whether the injury is such that the person cannot perform these, even with reasonable adjustments.
What if the role cannot be ‘reasonably adjusted’?
Where the employee’s role cannot be reasonably adjusted, a longer-term strategy will depend on whether the nature of the injury is deemed to be temporary or permanent in nature. Under the Fair Work Act (see s352), employers cannot dismiss for a temporary illness or injury. Under workers’ compensation legislation, specified periods of return-to-work obligations exist.
Ultimately, if the injury is of an ongoing nature, employers will need to determine whether they proceed to a termination of employment. In this instance, medical advice must be obtained and reviewed. Dismissals may be challenged and employers must ensure that they are following due process in order to minimise risk.
Employers can offer alternative duties to an employee injured in personal circumstances but should give careful consideration to the level of introduced risk, the potential impact on the injured employee’s immediate colleagues, productivity, efficiency and the equity of the decision.
Finally, it is important employers understand that a recurrence, aggravation, acceleration, exacerbation or deterioration of a personal injury which meets the WorkSafe definition, in or out of the course of employment, is considered compensable under each state-specific Act. This means that a well-intentioned employer, who offers alternative employment to an injured/ unwell employee, could be left managing a WorkCover claim.
Managing offers of suitable, adjusted or alternative duties
In all circumstances, it is important that employers and employees alike understand that offers of suitable employment do not form part of a new offer of employment. To manage the risk associated with accommodating informal, ongoing arrangements employers should seek the employee’s written agreement that they understand the duties are temporary and designed to support their recovery and return to pre-injury employment.
Employers must be active in assessing and mitigating risk from the outset, as many of the opportunities to minimise risk diminish over time. A structured and well-planned process will include the following essential elements:
• medical opinion – challenged where necessary
• early and active challenges if disputing a WorkCover claim
• careful documentation; and
• an awareness of the intersecting legislative requirements.
Lisa Burrell is the general manager of the
Victorian Employers' Chamber of Commerce and Industry (VECCI). VEECI is Victoria’s most influential employer group, servicing over 15,000 Victorian businesses per annum. An independent, non-government body, VECCI was founded in 1851 by the business community to represent business.