Returning to work following an injury can be a difficult process and one that is hard to understand without the appropriate assistance and support. Make sure to seek legal advice from a lawyer to understand your rights and obligations, and support from your treating health practitioner. It is important to seek this guidance so that you have a better chance at returning to work in the quickest and safest way possible.

Gaining a thorough understanding of your injury involves becoming well-informed about the specific nature, circumstances, and implications of the injury you sustained. This includes not only recognising the physical or mental aspects of your injury but also its potential impact on your ability to perform tasks, pursue daily activities and get back to work.

What are my obligations to return to work?

All injured workers on WorkCover receiving weekly payments of compensation are expected to:

• make reasonable efforts to participate and co-operate in the planning for their return to work
• actively use, and co-operate with, the occupational rehabilitation service provided
• actively participate and co-operate in any assessments carried out in relation to determining capacity for work, rehabilitation progress or future employment prospects
• actively participate in an interview with a representative of WorkSafe to enhance opportunities to return to work
• make reasonable efforts to return to work:
  • in the job you had pre-injury; or
  • by conducting alternate duties which consider your limitations post-injury at the original place of employment; or
  • at another place of employment.

A failure to meet your Return to Work obligations may lead to:

• a written warning notice that your weekly payments of compensation will be suspended from a specific date unless you comply with your return to work obligations
• a suspension of your weekly payments of compensation for 28 days
• the official termination of your weekly payments of compensation.

Can WorkSafe force you back to work?

The earlier you plan your return to work, the quicker you are likely to be back. Your employer and WorkSafe cannot force you to return to work if you are not physically or mentally ready – you, in collaboration with your treating doctors, are in the best position to determine whether you are capable of returning to work in some capacity. However, you do have return to work obligations you must comply with, which have been outlined above. Importantly, returning to work does not require you to be at your pre-injury capacity or to have finished medical treatment. You can return to work at any stage throughout your recovery process, even if you are subject to limitations and restrictions.

Whilst we understand that a work-related injury/illness has a significant impact on your life, WorkSafe have found research that shows getting back to work is vital for your health and wellbeing.

What if you’re unable to return to pre-injury duties?

Sometimes despite your best efforts, you may not be able to return to pre-injury duties and/or with your pre-injury employer. In these circumstances, you must continue to comply your obligations. Usually, this comes in the form of working with your chosen occupational rehabilitation provider to determine what other forms of employment are available to you. Depending on your circumstances, the occupational rehabilitation provider may also assist you with job seeking services, conduct a transferable skills analysis, conduct a vocational assessment or provide capacity support services.

It is important to note that your employer has a legal obligation to provide you with pre-injury employment or suitable employment for a period of 52 weeks dependent on the extent it is reasonable to do so.

Additionally, the law also states that you are obliged to try and return to work.

Create a Return to Work plan

Creating a plan is a compulsory step and forms part of your obligation for your return to work journey. This involves liaising with your treating practitioners, your employer and your occupational rehabilitation service provider to guide you through a coordinated approach and to oversee your treatment, recovery and return to work, whilst still prioritising your health and well-being.

In accordance with section 104 of the Workplace Injury Rehabilitation and Compensation Act 2013, an employer must, to the extent that it is reasonable to do so, plan the return to work of a worker. Your employer must consult directly with you, your occupational rehabilitation service provider and subject to your consent, with your treating health practitioner/s. This can come in the form of a Return to Work Conference organised by your chosen occupational rehabilitation service provider.

Your plan will be a step-by step strategy to assist in a smooth transition back into the workforce. It will include any restrictions and/or adjustments recommended by your treating health practitioner to allow you to adequately recover, do your job safely, and avoid aggravating your injury. You should always be honest with your treating health practitioner about what you can manage, taking into account your current symptoms, skills, capabilities and requirements of the role. This is so your treating health practitioner can reflect this on your Certificate of Capacity.

Your return to work plan is enforceable when your treating health practitioner, employer and you agree to it.

Gradual return to work

Once the plan has been approved by your treating health practitioner, you will begin your gradual return to work. This allows for you to adjust and manage any potential challenges, whilst aiming to ensure a successful reintegration into the work environment. Adjustments may include:

• modifying your workstation or organising an ergonomic assessment
• adding restrictions on specific tasks, such as not lifting boxes over 5kg
• providing you with additional tools or equipment, such as a standing desk
• changes to your work schedule, such as less hours or days
• allowing for ‘work from home’ days
• rotating your duties more frequently and/or allowing regular breaks
• providing you with additional support from other employees
• providing you with additional training.

We remind you to be guided by your treating practitioner’s recommendations and if you are unable to perform a specific task, do not feel pressured or force yourself to complete it if you are uncomfortable. However, it is important that you inform your treating practitioner, the employer and the Authority if you are unable to perform a specific task or meet the requirements of the return to work plan. This is so the Authority doesn’t have the view that you aren’t meeting your obligations as required by law. Not meeting your return to work obligations may have an adverse effect on your weekly payments.

Case study

Although the Courts often find that insurers have incorrectly terminated an injured worker’s weekly payments due to a failure to meet their return to work obligations, there are also instances where the Courts have found against injured workers.

For instance, in the case of Cavanagh v CSA [2013] VMC 18, Mr Cavanagh was employed as a truck driver for CSA. On 8 March 2011, while shovelling sandblast waste into piles inside a shed, he suffered injuries to his right knee. He successfully lodged a WorkCover claim on 15 March 2011 and commenced receiving weekly payments of compensation.

On 28 May 2012, the insurer issued a Warning Notice to Mr Cavanagh for his failure to meet his return to work obligations – particularly that he refused to return to work on the date outlined in his Return to Work Plan. It was also alleged that Mr Cavanagh failed to make reasonable efforts to actively participate and co-operate in planning for his return to work or in returning to work in suitable employment or pre-injury employment.

Subsequent to the Warning Notice, Mr Cavanagh was issued with a Suspension Notice on 12 June 2012, followed by an official letter terminating his weekly payments of compensation on 11 July 2012.

Mr Cavanagh sought to have his payments reinstated at the Magistrates’ Court from 13 June 2012, however, the Magistrate determined:

• Mr Cavanagh had the physical capacity to perform the work duties set out in the Return to Work Plan dated 17 May 2012
• the Return to Work Plan was an offer of “suitable employment”
• the principal reason Mr Cavanagh refused to return to work in accordance with the Return to Work Plan was because he was angry and resentful towards his employer
• the termination of Mr Cavanagh’s weekly payments of compensation was therefore justified.

The case of Cavanagh is a good reminder an injured worker must meet their Return to Work obligations.

Support and Ongoing Care

Maintaining a support network is crucial as you reintegrate into work. Here are some suggestions to assist you in this process:

• discuss with your family and friends ways they can provide support and contribute to your recovery
• have regular conversations with your occupational rehabilitation service provider and treating health practitioner/s
• stay in contact with your colleagues while you are off work
• obtain legal advice early
• contact the WorkSafe Advisory Service.

Don’t be afraid to ask for assistance. Your support networks are there to help you.

You should also routinely review your return to work arrangements. Your capacity for tasks at work may involve frequent fluctuations, making it crucial to ensure that you do not exceed your capabilities. Therefore, it's vital to maintain regular communication with your treating healthcare professional about any modifications.

At Redlich’s Work injury Lawyers, we can support you throughout this process and monitor your recovery and treatment as you progress. If you would like further advice on getting back to work after an injury, please call Redlich's on (03) 9321 9988 for a free, no-obligation conversation or contact us using our online enquiry form.