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Workers compensation and return to work plans

Workers compensation and return to work plans

Do you know your legal obligations with employees who suffer from an illness, injury or mental health issues?

It can be complex and one of the most challenging areas of human resources management.  Employers have a legal obligation and duty of care to each employee but it's not a 'one-size-fits-all' scenario.

Join the legal experts in this free webcast recording and gain insights on how to best respond to workers’ compensation claims and facilitate the return to work process. This webcast covers:

  • An overview of the claims handling process
  • How to best challenge questionable workers’ compensation claims
  • Obligations in respect of suitable duties for employee’s returning to work
  • Return to work plans and end of employment processes
  • Discover how to tailor the approach for each employee and be confident in knowing you are managing your legal obligations

If you have any questions or require any assistance with workers compensation, contact ABLA on 1300 565 846. 

Webcast Transcript

Joe: And welcome, everyone. Welcome to our webcast on Workers' Compensation and Return to Work Plans. I am Joe Murphy. I am the Managing Director of National Workplace at Australian Business Lawyers and Advisors and today I'm joined by Emily Slater, one of our Senior Associates in the Workplace team. Welcome, Emily.

Emily: Thanks, Joe. Thank you. 

Joe: Emily joins us in place of Louise and we're sorry, Louise couldn't make it today at short notice, so we're very, very pleased to be joined by Emily. Today, what we're going to talk about is a range of things relating to workers' compensation, and some non-workers' compensation issues that arise around workers' compensation claims. The first thing we want to talk about is the claims handling process.

Joe: Now, we're not going to go into detail, given that we have a range of views across a range of states and territories in Australia and it would be very difficult to sit down and go through that in the hour with all of the different requirements, the different thresholds about making claims, timelines and so on, but we'll touch on the general consistencies across the states and territories. We're going to talk about challenging workers' compensation claim when and how to do it. Lots of employees want to do that.

Joe: What we're going to do is recommend a particular process that will help you do one of two things. One, it will help put the business in a better position to challenge those claims that are genuinely questionable. And two, it'll also put your mind at ease that claims that you might later be concerned about are actually genuine, and there's less concern, uncertainty, and angst within the business and in relation to that particular injured employee or injured worker.

Joe: We're going to talk a little bit about return to work plans and the obligations of all the parties in that process and then we're going to talk about how you manage return to work when workers' compensation claim has ceased, and talk touch on also the usual, which is what happens if the person is not returning to work. Just, am I latest Em, with this point about the types of claims and when is an injury covered by workers' compensation laws and this is really important when you are faced with a workers' compensation claim, so I want to be really careful here.

Joe: The threshold statutory requirements are these. Firstly, that there was an injury and we've got a personal injury. There was an injury and injury is defined in each of the pieces of legislation around the country, but it will usually include and in fact will include a physical injury or a psychological injury. Now, that's quite complex when we get down to that and break that down in a little bit more detail, but generally, it's physical and psychological injuries. The next threshold requirement is that the injury arises out of or in the course of the person's employment with your business and that might mean that it happened at work or it might happen in other circumstances, but that is one of the threshold statutory requirements. Another one is that the employment was a substantial contributing factor or a significant contributing factor.

Joe: Now, we've talked about those two, because the wording that's used across the states and territories is slightly different. There are some exclusions. Em, you might take us through the exclusions.

Emily: Yeah. I think, well the first dot point that we've got on the slide in relation to reasonable management action, that's a common exclusion that we'll see when we're dealing with personal injuries that are personal psychological injuries and where those injuries occur and those first three threshold requirements are met, that injury will not be compensable when it's a psychological injury where the injury results from reasonable management action taken by the employer and that can be reasonable management action to discipline the employee and to other otherwise do with the employee in the course of their employment.

Emily: Obviously, those types of situations can be difficult for employees and notwithstanding that an employer may have been completely reasonable and how it dealt with the employee. If the employee still develops an injury as a result of that which can happen, that injury will not be compensable where we can demonstrate that the employer has engaged in reasonable management action.

Joe: Before you go on to the next point, Em, I might just quickly say that, I'm going to say this a bit through the process today that is, again, the reasonable management action is framed or phrased differently in some of the states and territories, so it's really important that you don't take it as a general concept. It is defined specifically and it sometimes will refer to things like disciplinary action. It might refer to dismissal or termination of employment. It might also refer to performance appraisals or performance management. And what Emily has already said is that all of those things need to be conducted in a reasonable manner. It's not automatically that disciplinary action is excluded, but the disciplinary action itself needs to be conducted in a reasonable manner. Sorry. Take it away.

Emily: In an objectively reasonable manner as well. Some other solutions are journey claims travelling to and from work, that's pretty common, and also where an employee has themselves engaged in serious or wilful misconduct, which has contributed to the injury, that's a pretty high threshold, though. I mean, workers' comp is what some people would call a benevolent system. It's no fault, so, the bar for serious or wilful or serious and wilful misconduct contributing to an injury is quite high.

Joe: It certainly isn't and I was going to say that, but you beat me to it. I will come back just quickly on travelling to and from work, journey claims you talked about. Journey claims are out in most states and territories. There are a couple of exceptions, so I want you to be careful depending on the state and territory that you're in right now or that you operate your business in, I should say. And I also want to be careful that work-related travel will be included and it's not necessarily considered to be a journey claim. When we say journey claims, we mean to or from home. And then there are also exceptions around breaks and things like that.

Joe: So it's really important that when you get someone who's made a claim when they're not at work, you take a close look at where that occurred. If it was on the journey from home to work, whether or not it's applicable in your state of territory, most of the states and territories have gotten rid of it. Certainly, New South Wales got rid of it back in, I think, 2011. Yeah. It's really important that you focus on the facts and circumstances and we're going to come back on facts and circumstances a little bit lighter in the slide deck.

Joe: When is the best time to challenge a claim? Right from the outset, it's really important that you challenge the claim and what this means, it doesn't mean ringing up the insurer or the agent, whoever's looking after it and screaming down the phone at them that it's a false claim or that the person's a fraudster or they're a shonk. That sort of negativity without facts and circumstances backing it up will actually work against you and from that point, you can lose your agent or your insurer. The officer on the other end of the phone will immediately be concerned about whether or not you are an employer who just hates people making workers' compensation claims and is taking a cynical view or the most cynical view of the facts and circumstances.

Joe: What is really important is that you do notify as soon, as possible of the claim and you do advise the insurer have an intention to submit a response to the client. Now, there might not be a formal process in the state or territory that you're in, but if you do submit a written submission or written material to support your concerns, they will take that into account. You will find that part of the normal process will be normally to get a factual investigator in if there's any doubt at all about the claim and the factual investigator will also take that material into account if it's submitted to them at that stage. Timeframes, Em?

Emily: Yeah. The issue is timeframes, obviously, I mean, going back to what Joe said before the timeframes differ across the jurisdictions. I think it's important as an employer to know what the timeframes are and for those in New South Wales, there is a requirement that you notify within 48 hours of being aware that there has been an injury that you actually notify the agent and they can be in some jurisdiction some penalties in relation to an additional excess payment where you don't notify the insurer within the correct timeframe. So that's just something to be mindful of. The timeframes differ. There is a lot of them depending on what stage of the claim you're at. So, we just don't really have the time to go into them all for the purposes of this webinar.

Joe: Now, when we look at responding to a claim, I mentioned a minute ago that there's a range of ways you might communicate with the insurer or the agent, whoever's managing the claim and we strongly recommend that you put in a written response to the client or written submission to the client. It doesn't have to be formally a response, but it could be a written submission or written material, putting forward the facts and circumstances that you're concerned about.

Joe: Now, I'll say two things. One is it puts you putting forward the facts and circumstances that you're concerned about, but you're also putting forward the facts and circumstances as they are at that time and it helps to create a record in time that's contemporaneous about what the concerns were. We get to see lots and lots of claims, when the claims are stale and they're six months down the track or 12 months down the track and the employer is aggravated because they realised the claim is costing them a pile of money.

Joe: And if they had called us in the first place, we would have impressed upon them very clearly, very firmly that they should make a written submission right from the outset to make sure that their concerns are raised and dealt with and it gives you a greater peace of mind, not always, but it really does mean that you feel like you've been heard. And it does put the insurer or the agent in a much better position to make a judgment call about whether or not the claim is concerning from any of those perspectives that I mentioned earlier when we were talking about the jurisdictional thresholds.

Joe: What do you set out? You set out the background information. You might say, "Well, how much information?" And one of the questions we had here is, "How much information should be provided to the insurer or the agent at the outset and can I request that it remains confidential?" There's two things to say about that. One is you should give all of the information you can that's relevant and usually you do that by way of starting out with a chronology, setting up the facts and circumstances, and then you might have a submission as to why the person hasn't met one of the statutory thresholds, why you think the person hasn't got an injury. Now, you've got to be sensible about this.

Joe: If there's an x-ray that shows that the person has an impacted nerve at the S1 nerve root, they've got an L5, L4 disk issue and it's showing on a scan, the person has an injury. There's no point in arguing that they don't have an injury and I say that it seems a bit obvious, but we do get people that sometimes ring up and say, "This injury didn't happen. Well, it happened, it just happened somewhere." And what you really need to move on from that point is, "Well, did it happen at work? Was the work a substantial contributing factor? Was it a pre-existing condition?" And if you can't prove that and you have no facts about that, my advice is always, "Let it go."

Joe: If you cannot prove that what you think is a false claim or an injury that occurred prior to the employment, you have to let that go, because I can see it eats up employers when they think they have this deep suspicion that an injury or an illness was a pre-existing condition. They have no real evidence of it. It's just a rumour around the workplace, you've got to let that stuff go. If you don't want let it go, investigate it, so that it can be dealt with. The factual investigator will do a degree of investigation. They do a pretty good job in the context of what they're required to do, but what we're asking you to do is a more thorough job than that. You can gather more information at the workplace, you know your workplace better, you know your workers better, so you can get that information to hand and submit that to the agent or the insurer much better than a factual investigator who's coming to the workplace, and is only first meeting you and your workers for the first time.

Joe: The other thing is supporting documentation. If you can submit statements, if you can actually do that sort of a degree of investigation, by all means, although the factual investigator that's asked to come in if whether he is asked to come in, will do that. They will take statements. You might get statutory declarations because they can carry a little bit more weight. Now, when it comes to confidentiality in this question here, generally, no. You have to assume that anything you write will be submitted to the worker and they'll show it to their lawyer because it's their claim and the privacy and the confidentiality rests with them in the first instance when it comes to a claim.

Joe: So what does that mean? That means that what I want you to think about when you write these things, if you're doing it on your own and you're not doing it with the assistance of a lawyer or some other advisor, don't write anything defamatory in that material and don't write things that are not factual, but adverse about the individual either, because all you will do is take the raters' view about you and also take the raters' view and perhaps the assessor's view against your position. So remote factual and extensive is the way I would have to deal with it. Tips for written responses, Em?

Emily: Yeah. Well, a lot of these Joe sort of touched on just before, but certainly, I think the biggest point that we would make is providing supportive evidence. If you can do that in a statutory declaration, that would be beneficial, that obviously carries more weight than just providing a signed statement. We say things like there might be CCTV footage of where an alleged incident was or an injury was alleged to have occurred or when it was alleged to have occurred and then you might go back and review that CCTV footage and find that it didn't actually happen in the way that the employee described it happened, which led to their injury. So, you might be able to present that information to the insurer as well.

Emily: It's very, very important, as Joe said, to just focus on the facts and focus on the evidence that you have as opposed to putting forward assumptions or putting forward some other adverse type comments about this employee's credit and maybe how they've behaved in the past and whether this is the first workers' comp claim they've made, those types of things. We see that a lot. It's generally not helpful.

Joe: No. No, it's not. And just on the point of objective evidence, you've talked about video evidence and that's very helpful. Another very helpful point can be emails. Now, we want you to be careful, because if they're an employee and you're in New South Wales or the ACT or another state or territory that has rules around computer surveillance, you need to make sure you've got the right arrangements in place that comply with the surveillance legislation in your state or territory.

Joe: If there is surveillance legislation in your state or territory, for example, in Queensland, there's very little, but in New South Wales and the ACT, it's most extensive, and then you've got Victoria, South Australia, WA smattering across those jurisdictions. So, it's really important that you comply with that legislation, but emails can be very helpful. Another piece of objective evidence that you could submit and quite frankly, if there's anything helpful there, it needs to be relevant. And again, not submitted on the basis of a defamatory or a smear campaign.

Emily: And one example of that is, this is a while ago now, but we did have an employee who had sustained a back injury and had said that that was an injury that occurred in the course of employment and provided a story about how that injury was alleged to have occurred while she was carrying suitcases, and the employer was able to lead some quite solid evidence about the employee, saying to another colleague that she had actually hurt her back at home with her children. So that that's an example of where we're able to get that evidence and were able to present it and then that went in support of having that claim declined, because it didn't meet the statutory thresholds in the legislation, so it can be very, very helpful.

Joe: Yeah. And when I was talking a minute ago about emails, I was thinking about a specific case, where an individual had written a whole range of things about these individual's pre-existing life stresses and psychological challenges in emails in the early hours of the morning and we're able to submit those emails with the claim and the claim was declined because it demonstrated that there was a significant likelihood that they were pre-existing conditions and also the facts and circumstances of an injury occurring at work were unlikely in those circumstances, so that was very helpful, so objective evidence is very, very helpful.

Joe: As we've already said, one of the issues is when you're challenging a claim, the incident or circumstances which gave rise to the injury did not occur. What we want to say about that is this. I've had people ring up before and say, "Look, I've got this person who's made a claim. They've got an injured back. I don't think it happened at work." I say to them, "Well, why don't you think it happened at work?" And they said, "Well, no one saw it." I have to say a lot of injuries that happen at work are not sighted by anyone. That's not because they're dodgy, it just so happens that someone happens to slip over because they've been absent-minded or they slip off a ladder or they have something drops on them. And in many of those circumstances, the injury will not be seen.

Joe: In this particular injury, I asked them why they didn't think the injury occurred and I said, "Well, nobody saw them fall, but when we came around the corner, they were lying on the ground." I think that was enough to let go of any suspicion and the injury should not have been in contest at that point in time. And later on, it came out that there was an x-ray and there was an injury, so I had to talk the employer down off the ledge of contesting the claim at that point in time because it was a lost cause. Sometimes, it can be that you are suspicious that it didn't happen in connection with their employment. You have to understand that people sometimes will injure themselves in the workplace even though you can't fathom that an injury would have occurred, but if you do have evidence that it didn't occur, then by all means, as we've already said, you can challenge it.

Joe: The other one is whether or not a claim is accepted sometimes as being an aggravation or exacerbation of a previous claim rather than a standalone injury and that will be something that you'll have to talk to the agent or the insurer about. We've already talked about reasonable management action. And then the last one is an application for compensation out of time, so that might be a reason to object. Looking at the timeframes as we've said before, we haven't covered off on timeframes as any detail, but that will sometimes provide a reason as to why you can object to a claim.

Joe: Now, what I would suggest is that if you are going to do that this is something you would do intensively with the agent or the insurer whoever is managing your claim, right from the outset point, pointing it out to them if you've identified it yourselves. And asking the agent or the insurer for a written explanation as to why if they're going to accept liability, why they're going to accept liability. We always submit that because it really does put front of mind for the agent or the insurer that they're not going to be able to take the easy route and accept the claim. If it's a tough claim, then a tough decision needs to be made.

Joe: There's also the prospect of an appeal. Now, in the different jurisdictions, there are different review processes, different appeal processes. Some of them are better than others, let me tell you. We won't go through the different appeals and review process that are available, but I will say this, if you have not spent the time at the beginning of a claim doing what we've talked about today, putting your best foot forward, putting all the facts and circumstances forward to the agent or the insurer and a decision has been made adverse to your company's interest or your interests and you want to appeal it, you will not be in the best position to run an appeal or review if you haven't done that from the outset. It looks like sour grapes if you do it later on, and the strength of your evidence is undermined by doing it later on.

Joe: So, you need to still run all those background or front-end I should say, front-end processes that we've already talked about being thorough, putting your concerns in writing, putting the evidence forward that you need to put forward if you want to be able to run the best review process or appeal process depending on the state or territory. Em?

Emily: And so looking at, moving onto, I guess now we've got an employee, there's been an accepted workers' compensation claim and then we look at how do we return them to work and what happens around the return to work. Again, the situation in the legislation across jurisdictions is slightly different, but in a nutshell, you want to be getting that employee back to work as long as it's safe and as long as there are guidelines from doctors and rehab providers around how you do this. You want to be getting them back to work as quickly as possible.

Emily: There is an obligation on employers to comply with a return to work plan and the employee, I should say, so the mutual obligations on both sides to comply with a return to work plan and participate, actively participate in their rehabilitation, so what you'll often see where there's a return to work plan, there'll be suitable duties which will be set out in that plan. And accepting in very limited circumstances, you have a statutory obligation to provide suitable duties and allow that employee to come back to or have that employee back to work, performing those suitable duties as part of that return to work plan.

Emily: The benefit of that as well is that it has premium impacts. You'll be taking the right steps to keep your premiums low and obviously, when you're looking at a return to work plan, it will usually be done in conjunction with both rehabilitation provider, which is engaged by the agent and the employee's treating doctor as well. So, they'll look at what's the nature of the injury, what duties can the employee perform. There'll be timeframes as well, so it might be that they'll return and for the first two months they'll be doing these duties and or it might be they're doing these hours or these days. And then, you generally see it slowly start to increase depending on how the employee responds as part of performing their suitable duties.

Emily: Sometimes you see employees come back to work as part of a return to work plan, they're performing suitable duties, and they find that given the nature of the injury, that's just a little bit too much for them, and then it drops back. So it can be a three steps forward two steps back process, and that can be quite frustrating for employers as well, but it is important to go through the process.

Joe: Just a couple of things I'd like to add. Thanks, Em. Just remember, under the legislation in each of the states and territories, we have return-to-work obligations, not just at the time of the injury, but as an employer you have to have in place a return-to-work program and each time an injury occurs you'll need to have returned to work plans in place for people who will have some capacity to come back to work. What I would suggest on top of that is that you should, the first thing is keep very good records of your return-to-work plans. And what I mean by that is not just keeping copies of everything that has been circulated and submitted, but I also mean, making sure that you have copies of your return-to-work plans with everyone's signatures on them.

Joe: Emily and I had a matter very recently where we had a return to work plan that wasn't signed by most of the parties, and it was in dispute about whether or not that plan was actually something that was agreed to, so it's really important and that's a fair call. If an employee doesn't have their signature on it, or the employer hasn't signed it, nobody knows if that's been agreed to. So, it's really important that you're thorough with the return-to-work plans and that you're thorough with the record keeping around the return-to-work plans and the communications around that.

Emily: Yeah. We're often recommending to employers as well that they keep a chronology. It can be in a spreadsheet format, something so that there's just a really clear background of events, particularly when you've got a claim that's going on for quite a long time. You'll find that it might be nine months down the track and you're needing to check something. If you've got a chronology and you've got all your documents in order, it makes it so much easier to manage that type of situation. So, we're often saying keep a chronology, spreadsheet is usually the best way to do it, but it can be just in a Word document.

Joe: It can be. Now some of the concerns that people have around return to work is the health and safety obligations and that's something you need to balance at the same time as implementing return-to-work plan. This is not about forcing someone back to work in circumstances where there are real concerns about their return to work being compromised by their ability that you actually perform the work safely.

Joe: So they might be able to come in day one and do the physical requirements of the work that they're required to do, but their physical injury and the stability of that injury might actually put them at a higher risk of exposing them to aggravating the injury, re-injuring themselves, having another injury, or creating a risk to someone else in the workplace. So it's really important that you're clear when that person is coming back to work, that the doctors have turned their mind to the risk of re-aggravation and re-injury, so that's really important.

Joe: What I would say though is when we talk about return to work, I'm a big fan of getting people back to work as quickly as possible. It doesn't mean forcing them back to work, but it means getting them back to work in the nicest possible way so that they can stay engaged in the workplace, they can feel like they've got something useful to do with their lives. If you've got people out on workers' compensation for extended periods, the longer they are out, the less likely that they're going to come back to work.

Joe: I know that return-to-work coordinators and return-to-work rehabilitation consultants do their best to get people back to work at any stage, but the longer people are out, the less engaged they become, and the more likely it is that they're going to become depressed and you might find they don't come back to the workplace. That's expensive for you. It's costly for them from a personal perspective, so we would really impress upon you to try and get people back to work as soon as you can, reasonably.

Joe: When it comes to, from a health and safety perspective, though, we've got up here, raise the concerns with the insurer. That's okay. You raise them with the doctor, as I've already said. So, the doctor needs to provide you with a view about whether or not the person is at risk. If you can't get it from the treating doctor or it's not apparent from some of the medical information you've got through the workers' comp process. Then you want to look at potentially getting an independent medical examination and that might be with an occupational physician or equivalent.

Joe: And that doctor would be asked the very specific questions having regard to the position description and potentially a more detailed description about what that person's physical job involves or psychological challenges the job presents for the person having regard to the illness that they have or the mental illness they have. And that doctor would then provide you with a report that will provide you with enough information from a medical perspective as to the safe return of that person to the workplace.

Joe: Another option is to seek information from the treating doctor. You can sometimes find that treating doctors are not very cooperative. They're untrusting of employers because they may have had an experience in the past where an employer has been brutal or not particularly caring about a patient of theirs and it's coloured the view of workers' compensation claims. I think if that's the case, then we turn back to an independent medical. We don't force the GP or the treating doctor to provide that information. Well, you can't, frankly, force them to provide it, but if you do find they're being difficult and non-responsive to the questions, you really need to go to an independent assessment.

Emily: So what happens after the workers' compensation claim has ceased? What we usually find is we'll have employers contact us while a claim is on foot or there's been some sort of information from the insurer to say that they're no longer going to be paying weekly payments to that employee. They've explored all return to work options and nothing's working. Sometimes, a claim might be a bit of a standstill and we're often asked to assist or, "What do we do with this person now?" They're always still employed unless they've taken steps to resign, which is very, very rare. We don't find that employees will resign while a workers' compensation claim is on foot. It's highly unusual for that to happen.

Emily: So where you've got a claim that has otherwise ceased and it doesn't necessarily mean that an employee's fit to safely return to work and perform the requirements of their role. And we've got one at the moment where the claim has ceased, the employee's medical, there's some dispute with the evidence or the information that we're getting from the doctors, but we know that the employee still can't safely return to work. So the employer is asking the question, "Well, what do we do here?"

Emily: What we'll always recommend is that an employer takes steps to get the employee examined outside of the workers' compensation claims. So this is something that as an employer, you can do with your employee. That employee is subject to an obligation to comply with an employer's lawful and reasonable direction. If you don't have and in the context of a workers' comp claim, you often don't have a lot of direct medical information. We often find that employers will ask the agent for copies of reports and the agents will say, "No, we can't release that for privacy reasons." And so employers often get little snippets or summaries of medical reports, they don't actually have a full medical report into that employee's condition.

Emily: So, as an employer, you can take steps to obtain your own medical report. It can either be done by way of going to an independent doctor, so an occupational physician, as we talked about in the previous slide, but often, you can go to the employee's treating doctor and ask for a report to be done or an assessment with a report to be done on that employee, particularly if you've got an employee who is only able to return to work at a reduced capacity, then you really want to get some information about, "Well, okay, how long is this going to last? Is this something which is temporary?"

Emily: Is the employee improving or is this actually going to be a permanent situation and the employee just cannot perform the role that they were originally engaged or hired to perform, so it might be that they're a store worker, and they're required to lift certain items and operate a forklift and a lot of manual labour type role, work, sorry. And you know, they've got an injury, which means that they can only lift up to five kilos or 10 kilos, and you've got some otherwise pretty significant restrictions, maybe they can't drive the forklift.

Emily: So you really need to be looking at, "Is this going to be temporary or permanent?" Because that obviously then impacts on that employee's ability to perform the role that they're engaged to do, but also, as an employee, you want to know, "Can we make adjustments? Is there anything that we can do to assist the employee to perform their role?" And reasonable adjustments in this context is not the same as providing suitable duties which you have the obligation to provide under the workers' comp scheme.

Emily: It's, "Are there any adjustments that we can make to this role which will assist the employee to perform the role that they're engaged to perform?" So it might be that that, because they've got lifting restrictions, you bring in a piece of equipment that will assist them to actually lift what they're required to lift as part of their role. And those adjustments must be reasonable, so they can't be adjustments that would cause an unjustifiable hardship on the employer. So say, that piece of lifting equipment may cost thousands and thousands of dollars, then there'd be an assessment about whether that adjustment is reasonable in those circumstances. Joe?

Joe: Yeah, so the process and I should just say when we were talking about this some what happens with the capacity after an employee's claim has cease. This might happen for a whole range of reasons. It might also be something that you choose to do outside of the workers' comp process, but when you are going to get to the point where they've either had a rocky road when it comes to return to work and it's been up and down and it looks like, in your mind, that they may never make a return to work or return to their pre-injury duties or return to an alternative role with your business and the agent or the insurer haven't found them a role with another business, which might be something that I would consider along the return to work or rehabilitation journey.

Joe: The process you might find yourself at is whether or not you want to conduct an assessment of their fitness for work. And so what you need to do in that scenario is this is outside of your workers' comp process, it is separate to your insurance, engaging with your insurer or your agent. And it is a process that you will do just between you and your employee and whatever medical practitioner you end up liaising with.

Joe: And so the scenario we've got up here is that you would have them assessed as their fitness for work. You need a medical authority and that means the employee needs to provide you with a medical authority, providing their doctor with the go ahead to provide you with access to their medical information. Or if it's an independent medical examiner that that independent medical examiner is authorised to provide you with that particular individual's medical information.

Joe: Now, doctors have a code of confidentiality that applies to them, much like solicitors or slightly different though. But nonetheless in the same vein, without permission and without some compelling legal requirements, they cannot provide you with information so you need a signed authority, which sets out that the employee authorizes you as the employer to engage with the particular medical practitioner, whether it's a treating medical practitioner or an IME and authorizes that medical practitioner to provide you with a written report addressing the questions.

Joe: Now the letter to the doctor that you ultimately send to the doctor sets out all the background information on the injury, sets out the periods of absence that the person has, you would sit at the return-to-work journey. So we've already talked about keeping good records and Emily talked about having a spreadsheet or having a chronology that sets out the return-to-work journey. If you're doing that, it makes life a lot easier at this point because you are almost cutting and pasting that out of your spreadsheet or out of your chronology and into the letter at that point in time. It gives the doctor a really good idea about the challenges that this employee has faced in trying to get back to work and the challenges you as an employer has also faced in trying to get this employee back to work and the efforts you've made trying to get them back to work. It is important that they get the story and they understand it.

Joe: Provide relevant documents, so there might be other medical reports that you've been provided with through that workers' comp journey. You might provide return-to-work programs. Now, I wouldn't necessarily provide them if they're just run of the mill work return-to-work programs, but I would provide copies of really important medical certificates or certificates of capacity depending on the state and territory you're in, and those that really talk to the challenges that the person has faced from a physical or mental perspective and the attempts to get back to work in accordance with the return-to-work programs.

Joe: You must set out as a mandatory requirement at the end specific questions that require the doctor to address as comprehensively as they can, the medical conditions the person has, because at the point in time if you're making a decision about this person's ongoing employment, you need to have in your mind clear what are the challenges that this employee has at this point in time. If you're going to do the assessment, that Emily was talking about before about providing reasonable adjustments and you must do that assessment, then you need to know what are the challenges. You also need to know what treatment the employee has had throughout that process that you might think you know it, but the reality is that you don't always get all the information from a workers' comp claim.

Joe: You will only get what you are given and you only get what is considered to be reasonably necessary to give to the employer in most states and territories. Sometimes you get very little and if you don't ask, almost nothing, in some cases, and some employers are confounded by that. But if you don't show any interest in the claim, well, you might find yourself very uninformed about what's going on with that individual. That would make you need to ask more questions of the doctor. The doctor will then meet with the employee and ask the employee all of that background information if you're not able to give it and they'll set that out in a report to you.

Joe: Now you also need to ask about the prognosis. "Are they going to get well? Well enough," I should say, to come back to work and do the job that you employed them to do and you should also ask the doctor for their view or the practitioner. Sometimes they're not called doctors. They might be just a medical practitioner that's by a different title, might be a professor. And at that point in time, you should also ask the medical practitioner, "Do they have any view about particular reasonable adjustments needed to be made?" And Emily talked about that before. And then you need to consider whether or not you can make those reasonable adjustments on off.

Joe: But we would always suggest that you should consult with the employee about the reasonable adjustments if there's any question about whether or not you can provide them and it's always a requirement in any process when you're making a decision about someone's ongoing employment, whether it's disciplinary or performance-related or in this case medical-related, then you need to follow a fair process and that means giving the employee all the relevant information. We always say, "Give the employee the medical report." I defer in favour of giving the employee the letters that you've given to the doctor. In fact, we usually give them in advance of the appointment, but the employee should have all that information with them, so they can understand the basis upon which you are making a decision about the future of their employment.

Joe: Once they've got all that information, they should have an opportunity to respond and then once you've taken into account what they have to say, you can make a decision about their future employment. That may include termination of employment. And if it is termination of employment, then you need to consider your other contractual requirements, the requirements of your particular industrial instrument, that might be an enterprise agreement. There's probably not much in most of the awards, but you should still turn mind to the modern awards and whether or not there's any requirement in a modern award. And you need to form a view about how you're going to terminate that employment in in accordance with the contract and the instruments and do it lawfully in accordance with that contract and those instruments.

Joe: You don't have an automatic right in all circumstances to terminate someone's employment and pay them in lieu of notice. If the contract says you have to give them notice, then you'll have to give them notice and sit back and wait. We usually are in favour of terminating sooner rather than giving notice and waiting out the notice. If you have to wait out the notice, then it might be a discussion with the employee in reaching an agreement about paying out the notice.

Joe: Now, that seems a bit odd in circumstances where an employee may have been away from the workplace for a year, add in months, sometimes two or three years, paying them out notice in circumstances where there haven't been fit to perform any work might seem a bit odd but it's in circumstances where you going to terminate their employment and the contract says, they will either work out the notice and that means sitting it out without performing the work or pay in lieu, then you need to pay in lieu. And that's usually the case when it comes to people who have contracts.

Joe: That's the process for moving someone on. I've sort of jumped ahead here, because I've already talked a little bit about these things. Some of the things you should consider when you get to the point of terminating their employment? What are the risks if you terminate the employee's employment? Some of those risks discrimination claims, other risks should be unfair dismissal. Depending on the absence of the person, unfair dismissal may be very low risk, a general protections claim similar to a discrimination claim and the one claim that I would warn you about in the states and territories is the timing of the dismissal.

Joe: If you are going to terminate someone's employment and it's in connection with the workers' compensation claim, then you need to be conscious of the various timeframe in your state or territory. They vary from state to state and territory to territory, but a couple of examples are, there's a 12-month period in Queensland, we need to be careful about terminating someone's employment within 12 months and there's a 12-month period in Victoria and there's a six-month period in New South Wales, and then there's another provision in New South Wales about, say applying for reinstatement within two years. It can all be very complicated, but you need to give that person at least that period as is required under the legislation.

Joe: The thresholds are also different. Some of them take place or commence from the time the injury occurred and some of them commenced from the time the person was first unfit and some of them are a single period and some of them are a compilation or a totality of all of the absences from the workplace. So it's really important you get advice before you terminate anyone who has made a workers' compensation claim and has been on compensation or is on compensation. It can be risky, and there can be penalties for terminating someone during that period. Unless you have anything else to say about that, Em, we might deal with some of the questions?

Emily: Yeah. I think the second point talks about what should an employer do where the employee refuses to attend the assessment. So this sometimes comes up where you've got an employee, it's in the context of a workers' comp claim, whether that claim has ceased or is still on foot and you're past the thresholds. So, usually in New South Wales, we might be contacted by an employer after the six-month mark, in Victoria, it's usually once the employers complied with the 52-week obligation period that exists down there in that legislation. And they'll say to us, "What can we do? This employee is not coming back or they're back in their own light duties, and it just doesn't appear that there's any improvement or the situation is changing? How can we manage the situation?"

Emily: In this, we talked to them about having a medical assessment done outside of the workers' comp scheme, getting their own medical report. So we do the letters, we get the authority, we write to the doctor, we write to the employee, we send the employee together with our letter to the employee and the authority will often enclose a copy of the letter to the doctor, so that we're being completely transparent. And then we often get an employee who will say, "Well, no, I'm not going to sign that because you've got that information via workers' comp," or "Why am I doing this because I'm giving you medical certificates. This is part of a workers' compensation claim. I'm not going to agree to this."

Emily: What usually happens then, is we then redirect the employee and the letters to the employee is that initial letter letting the employee know what we're going to do and why. Usually we then try and pre-answer or preempt some of those questions that we get from the employees and some of the reasons why they go, "No, I'm not going to do this. I'm not going to sign this authority. You don't need to have this information." Where the employee refuses in the face of that letter, we then redirect them and then that's part of a more formal written direction for the employee to sign and return the authority by a specific date and then we put the employee on notice that this is potentially going to become a disciplinary issue around that employee's failure to follow a lawful and reasonable direction.

Emily: Sometimes, the employee will go and get a lawyer and then a lawyer will become involved and the employer is then engaging directly with that lawyer or if they engage us to assist, we're engaging with that lawyer, but generally it becomes a disciplinary issue, and it escalates from there. There's infinite ways it can go. Sometimes it leads to termination of employment. Sometimes the employee, at the last minute, will go, "All right. I'll sign it." And you might be at the show cause point and then the employee signs the authority and returns it and then that takes you back to square one of writing to the doctor, getting the medical report. But yeah, in a nutshell, it becomes more of a disciplinary issue.

Joe: Yeah, I think one of the overriding things that covers both that process and everything we've talked about today is when it comes to workers' compensation, being patient and diligent, two of the things that will really help you manage your risk, manage your concerns. It will help you sleep better at night as well. So, the things we've said today really do go to that, being thorough, but also being patient. Being patient can also help prevent you from making silly mistakes and saying the wrong thing.

Joe: Some of the questions we've got today pretty good actually and some of them are pretty straightforward. I'll start off with some of the straightforward ones. "Can you please explain why stat dec carries more weight than a signed statement?" Now the reason for that is a statutory declaration is it is a declaration, exactly that. It's dictated or it's a creature of statute and it requires you to make an oath or an affirmation. A bit like when you go into court and you swear that you'll tell the truth, very much so a statutory declaration is a statement made under oath or affirmation. And if you lie in a statutory declaration then there are penalties under the legislation that applies to that in each state and territory. So, if you get a stat dec then the person is basically saying that, "I am telling the truth and I'm willing to face a penalty if I'm found not to have told the truth."

Joe: So, signed statements are all very well and I can be criticised for it, but it's not a breach of the law to lie. You might be found to be a witness of no credit and you might get criticised in a decision in a tribunal record, but the statutory of declaration provides the insurer or the agent who is assessing the claim with a little more comfort about what's being said in that.

Joe: Now, what's really important about the stat dec is this, if you are going to provide a statutory declaration that is valuable, it can't be dot points. It needs to be in a particular form that provides the insurer or the agent with the factual circumstances. Ideally, it would include direct speech, if you can about conversations, if there's an issue about conversation. What I mean by direct speech is, "He said this, then I said this, then she said this," and setting out the words to the best of your recollection exactly what was said, and of course, attaching any evidence that supports any of the factual contentions set out in that statutory of declaration. So that's why statutory declaration is more helpful than others.

Joe: I've been asked also to clarify this issue about pre-existing injuries. Someone said here that, "I'm advised now that work cover accepts all pre-existing injury claims." Be careful about that. It's very difficult to prove that someone's injury was a pre-existing injury unless you've got evidence to demonstrate that and it does go to the issue of injury, full stop. Meaning well, whether or not the injury occurred arising out of over in the course of the employment.

Joe: So if someone has, and there's the old classic stories of someone breaking their leg on the football field on the weekend, and the mates dropping them off on the on the doorstep of the workplace on the Monday morning, so they can stage an injury. I haven't seen that happen but I heard those stories back and my workers' comp days as a bit of a laugh about people staging claims, but the reality is, it sometimes happens. It's very, very rare. I don't think people do it very often at all, but it has happened and people have been prosecuted for it. You do have to have pretty strong evidence of it.

Joe: So preexisting conditions are certainly relevant and they're certainly relevant also in the context of psychological injuries. And I've had cases before where people have said, "Now, I'm suffering a psychological injury as a result of these events in the workplace." And we're able to find clear objective evidence in the emails demonstrating that, in fact, she'd be very clear that she had these conditions beforehand and you could tell through the emails and they're very, very helpful emails that there was a significant likelihood that the injuries or the mental illness had been ever present the whole way through, including from the commencement of employment.

Joe: One of the issues that's also raised here in one of the questions is, "When it comes to psychological injuries, how do we manage that when the employee has commenced with us and how do we prevent that person making a claim with our business?" Well, if you're a way that someone has a mental illness and that had started with your workplace, then you should really put in place a plan to manage that person's particular mental illness. Now you need to be very careful about it because you need to be respectful. You need to liaise with them. If they've advised you that they have a mental illness, they've done so for a good reason and it's great they've told you, because I find that employees that are more open with their employers get better results.

Joe: The employers are immediately more empathetic, more supportive if an employee can be open about the challenges that they have with their health, whether that's physical or mental. And when it comes to psychological injuries, you need to make sure that you're conscious that those people who have a psychological illness are not exposed to circumstances that might exacerbate their injury because if the illness or their injury is exacerbated, then that will likely be separate claim and your business is liable for that.

Joe: One of the other questions is, I'm going to put this one to, Em, "Is there a statute of limitations for someone who is an ex-employee and come back saying they injured themselves at work but are looking for further compensation even though they were not on work cover when they're employed by us?" The question is, "I hope that makes sense." It does make sense. I mean, we talked about some time limits before. We have got all the time limits at our fingertips right here now, there's a general position.

Emily: Yeah, I know for a fact in Victoria, there is a provision in the legislation about this, and as an employee in Victoria, you must make a claim while you're still employed and it will certainly prejudice the claim that you've made if you make that claim outside of once you've been terminated. We do see that. In New South Wales that that is also an issue, although I'm not 100% on the exact time period or limitation in New South Wales.

Emily: But certainly, that also goes to this issue of did you report the injury at the time, because if you've got an employee who suffered an injury a year ago and was aware of it, and there might be some medical records about this as well and they don't make the claim until after they've ceased employment, then there's issues around not complying with the reporting time periods at that particular point in time that the injury was suffered, and why didn't they raise it? And those are all legitimate questions and legitimate issues to raise when you're corresponding with the agents to dispute the claim.

Joe: Yeah. And so by way of example just dealing with, in certain states and territories, you'll find, for example, that an employee is supposed to notify the client within six months or proceed with their claim against the employer within six months and they will have problems from a statutory perspective proceeding with the claim outside of that period and up to a period of say, three years depending on the jurisdiction, which will stipulate that you need to demonstrate that particular circumstances, exceptional circumstances applied to that particular client.

Joe: So for example, the employee may have suffered, there may have been an incident, but the injury may not have manifested itself until a later date and that would certainly be a criteria that the court would consider in extending a claim, but it's really important that you look at those threshold requirements. You as employers have obligations to notify of claims. In New South Wales, you're supposed to notify the client within 48 hours. There can be penalties if you don't notify within that time later on. Penalties by way of an excess that you might have to pay. And so as we said, it differs from state to state and territory to territory.

Joe: Another question here is, "What happens if you go to an independent medical if the doctor isn't providing advice, but the employee doesn't want to participate? Can you direct this?" This goes to one of your last points.

Emily: You absolutely can if that direction is lawful and reasonable in the circumstances and usually, if you've got an employee who's been injured for a long period of time or subject to some restrictions around their ability to perform their role for a long period of time and it might be as a result of a workers' comp claim or it might even be a non-work related injury, then those circumstances will support that direction for that or for all the employees to sign that authority to enable you as the employee to get a report about that to be lawful and reasonable. Because you've got overriding work health and safety obligations, the primary duty of care is with the employer and obtaining a report of that nature will help you to comply with work health and safety obligations as well.

Joe: Yeah. There's another question here. "Is there a way to contest a claim without having to go through the insurer? Do we have any kind of leverage when it comes to urging the insurer to take action?" So, this is part of the reason why we recommend that at the very outset of any incident occurring and any claim being made, you put your best foot forward, and you sit out in detail the factual circumstances and the concerns you've got from a threshold perspective with your insurer/agent. Now, having said that, is there a wife without having to go through the insurer? Well, it depends on the state and territory. In most state and territory jurisdictions from a formal perspective, no, usually there's not.

Joe: And then the second part of that question about, "Do we have any kind of leverage when it comes to urging the insurer to take action?" Look sometimes that you have to understand they are regularly hit with employers who think the claims are fraudulent and it really brings you back to trying to do all you can from the outset to make sure that the facts and circumstances are communicated. And as I said right at the beginning, and I'll say this as we get to the end, the two things you want to do is you want to do that because one, it will put you in the best position to contest a claim that you think is fraudulent or two, it will put your mind at ease that the claim is not fraudulent and the vast majority of employees claims workers' compensation are not fraudulent.

Joe: They're always a bit odd and they often, particularly psychological claims, happen with employees who are troubled, often being performance managed in the like. That does not mean that their injury is not genuine. It might mean they won't get compensation if it's a reasonable management action, but try and always show empathy for people who have suffered an injury or are suspected of suffering an injury. It makes the workplace so much more pleasant space. 

Joe: Now, before we wrap up, I just wanted to point out that we are running some training, detailed training and that's when we will go through the different thresholds. We've got here Sydney, Brisbane and Newcastle. Louise, who was going to join me today will be running the Brisbane training and Louise is a top workers' comp expert as well as being a workplace expert and I'll be running the training in Sydney on the 12th, and we've got our Newcastle team running the training on the 14th of May.

Joe: With this training, we will go through in detail about threshold claims, how you respond to a claim. We'll be going through the types of things that you would need to put in these submissions to the insurers to make sure that the claims are managed well and also the techniques and other measures that you might implement to help reduce the cost of claims on your business from an excess perspective and also in other respects when it comes to costs. Emily, thanks for joining me today at short notice. And thank you all for joining us. We'll see you next time.
 
 

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