Once a claim for workers' compensation is accepted, the insurer will appoint a rehabilitation provider to assist in your return to work. The rehabilitation provider is a company contracted by the insurer to assist you with your return to work.
The rehabilitation provider liaises with you, your treating doctor, the insurance company, and your employer to participate in injury management and to return you safely to work. Both you and your employer have responsibilities and rights in relation to the injury management and your return to work.
Whilst rehabilitation providers can be of assistance in finding you suitable work with your employer and assist in developing a return to work program, problems can arise when an employer is unable to provide suitable duties.
Whilst an employer has an obligation to provide suitable duties to the injured worker, it is not required by law. If no such suitable duties are available, then an injured worker cannot return to work.
The injured worker however continues to have a responsibility to look for work in accordance with the WorkCover Medical Certificate. This puts the injured worker in a difficult situation where they remained employed but have an obligation to look for work in accordance with their certificate, even where an employer failed to provide suitable work.
The Case Conference
The rehabilitation providers however have various “tactics” which they use to either return people to work or use the workers' compensation legislation as a way of stopping a workers' weekly payments.
This situation occurs when the rehabilitation provider arranges a case conference with you and your treating doctor. The purpose of the case conference is so the rehabilitation provider can understand your injuries and assist with your return to work. However, what usually happens is that the rehabilitation provider intimidates or pressures the doctor to change the restrictions and hours of work contained on the WorkCover Certificate of Capacity.
For example, the worker has a certificate that certifies them unfit for work, the rehabilitation provider will arrange a case conference with you and your treating doctor. At that case conference the rehabilitation provider will try any means possible to have the doctor change the WorkCover Certificate of Capacity from unfit to work to fit for suitable duties.
The rehabilitation provider will state that the sooner the injured worker returns to work, the better off they will be and there is some support for this proposition however the difficulty arises when a worker has been receiving weekly benefits for at least 130 weeks.
If you have been receiving weekly benefits for between 130 and 250 weeks (that is 2.5 to 5 years) and your WorkCover Certificate is changed from being totally unfit to fit for suitable duties (usually because of pressure from the rehabilitation provider at a case conference) then this can cause great difficulties in receiving ongoing payments of weekly compensation.
Weekly payments can be stopped following an increase in hours on your certificate
Pursuant to Section 38 of the Workers Compensation Act, an injured worker is only entitled to weekly benefits after 130 weeks if one of the following is satisfied: -
- The worker is totally unfit for work; or
- If the worker is fit for suitable duties and working at least 15 hours per week.
Most workers who have been receiving compensation for at least 130 weeks have usually been terminated or the employer has refused to provide them with suitable work. As soon as the Certificate therefore is upgraded to suitable duties, if the worker cannot obtain such suitable duties on the open labour market with some other employer, then pursuant to Section 38 of the Act, weekly payments of compensation stop. The insurer is only required to provide 6 weeks notice that weekly benefits are to stop.
Once weekly benefits stop the worker is only entitled to receive medical expenses for 2 more years.
The above only applies to workers who have a 20% whole person impairment or less. If your whole person impairment is 21% or greater, you continue to receive weekly benefits until retirement age.
Therefore, the case conference is used as a tool by rehabilitation providers and insurers to put pressure on the nominated treating doctor to increase the hours of work particularly from a worker who is unfit to work to certify that the worker is fit for some suitable employment.
The consequences of such a change in capacity for work is significant when a worker has received benefits for at least 130 weeks. If an injured worker
at that stage is not working at least 15 hours per week and receives a Certificate for suitable work, then weekly compensation will stop.
Refuse to attend a Case Conference
An injured worker has a right to refuse to attend a case conference.
We recommend that you refuse to attend a case conference if you believe the rehabilitation provider will pressure the Doctor to change the certificate. Or you can make sure you discuss these matters with your general practitioner prior to the case conference without the rehabilitation provider present.
The general practitioner should be made aware that the purpose of the case conference is that the rehabilitation provider is likely to pressure the doctor to increase the Certificate of Capacity so weekly compensation benefits can be stopped, then discuss this with the Doctor before allowing the rehabilitation provider into the room.
If you would like further information on Workers Compensation, please see our articles on our blog;
- 9 Reasons you need an expert compensation lawyer
- 45 FAQ's in Workers Compensation Claims
- The Ultimate Guide to Weekly Payments
- Whole person impairment claims explained
GARLING & CO LAWYERS 2017
Matthew Garling, Founder of Garling & Co is a NSW Law Society Accredited Specialist in Personal Injury Law. He specialises in compensation law and has acted on behalf of thousands of injured people in work accidents, motor vehicle accidents and negligence cases over the last 20 years.