WorkCover and your obligation to return to work

Monday 1 July 2019
Linda Hanley

WorkCover law recognises that if you have suffered a work-related injury and have no capacity for work you need to take time off. 

The law also states you are obliged to try and return 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:

  1. 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.
  2. A suspension of your weekly payments of compensation for 28 days.
  3. The official termination of your weekly payments of compensation.

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 trucker 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.

If you would like advice regarding your Return to Work obligations, please give our free Adviceline a call on (03) 9321 9988 and speak directly to a lawyer.

Go Back