Published: 05 October 2017
Author: Stringer Clark

Which medico knows best when returning to work after a workplace injury?

My treating doctors disagree with the insurer’s independent doctors about my capacity to work. Whose opinion should i be going by, and what do i do if i receive a warning from my WorkCover insurer alleging non-compliance with my return to work obligations?

If you have an accepted WorkCover claim in Victoria, the legislation imposes obligations on injured workers to:

1. Make reasonable efforts to return to work in suitable or pre-injury employment;
2. Make reasonable efforts to actively participate and cooperate in planning for your return to work;
3. Actively use an occupational rehabilitation service if provided, and cooperate with the provider of that service;
4. Actively participate and cooperate in assessments of your capacity for work, rehabilitation process of future employment prospects; and
5. Actively participate and cooperate with the WorkSafe agent (or self-insurer, in some cases) in an interview to enhance your opportunities to return to work.

Employer’s are obligated to consult with you about your return to work – so the obligations are not just pinned on injured workers, there are employer obligations also.

In short, the insurer (or self-insurer) bears the onus of proving that you have been non-compliant with your return to work obligations or alternatively that it was unreasonable for you to not participate in any return to work arrangements, even though they may ‘determine’ that you have been non-compliant with your obligations. In many cases, this is because the opinion of a worker’s treating doctors is at odds with the independent doctor’s, particularly when it comes to what they believe an injured worker can or can’t do, or how many hours they can work.

Unfortunately, every case is different when it comes to notices from insurers alleging non-compliance with return to work obligations and there is no ‘blanket rule’; much depends on the specific circumstances of each case. If you receive a notice from your insurer such as this, you should be seeking legal advice as soon as possible, as action needs to be taken immediately in gathering the necessary information to challenge that notice at an early stage to avoid any effect on your entitlements.

When our clients have been served with such a notice, we often have had the ‘determinations’ withdrawn either prior to or at conciliation, but this is because we’ve acted immediately. On rare occasions, the insurer is warranted in determining that a worker has been ‘non-compliant’ when the worker has either not paid attention to the correspondence they had been sent by the insurer informing them of their obligations or alternatively has refused all contact with their insurer. This is why we reinforce getting legal advice at an early stage.