August 29, 2024 • 31 mins
There are so many questions when you're on Worker's Compensation - it can feel like a full time job! When it comes to doing the right thing with your Certificate of Capacity, knowing your rights with Independent Medical Consultants, and the ultimate goal of returning to work, getting good advice can be difficult, especially if it seems like a lot of legal gibberish!
In this week's episode, MSSN Founder, Dr Caroline Howe speaks with Scott Dougall, partner at Carroll & O’Dea Lawyers and a Personal Injury specialist and expert litigator about simplifying some of the more complicated aspects of making your way through these processes.
If you feel you need legal advice, the Independent Review Office is there for you: https://iro.nsw.gov.au/find-lawyers
To contact Carroll & O'Dea Lawyers: https://www.codea.com.au/
See omnystudio.com/listener for privacy information.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
S1 (00:01):
Hello and welcome to the My Social Support Network podcast,
a series to guide you along the path to recovery
while on workers compensation. In this series, we will answer
questions from you and provide information from experts and people
with lived experience currently going through worker's compensation and those
who have made their way to the other side. Through
these interactions, we'll be giving you tools, advice, but most importantly,
(00:24):
encouragement on what can be a stressful time when you're
also recovering from an injury sustained in your workplace.
S2 (00:31):
We're seeing letters from insurers saying if you don't cooperate,
then we'll suspend your payments, and that's not in accordance
with the legislation, and that's hopefully an error but feels deliberate.
S3 (00:43):
Worker's compensation can be a terrifying experience for some workers.
It can be very legally focused, and there are often
a lot of questions that seem unanswered. Today, we want
to take the time to talk to Scott Dougal, and
we're going to cover all things return to work. He's
a partner with Carroll and O'Dea lawyers, and he's an
(01:04):
accredited specialist in personal injury to help demystify some of
the questions, to empower injured workers, and also to be
able to clarify some of the things that injured workers
must do, and also the things that they can say
no to. Let's dive in. Scott, thank you so much
for coming on to the My Social Support Network podcast today.
(01:26):
It is such a joy to have someone with your
level of experience in the industry help answer and demystify
a few of the questions that the injured workers have,
either for us or for other people. Could you give
us a little bit of a background of the type
of role that you play within law to support injured
(01:46):
workers in the first place, just to add some context?
S2 (01:49):
Sure. Well, thanks, Caroline, and it's great to be with
you today. I'm an accredited specialist in personal injury law,
but my main focus is about workers compensation. And I've
got a particular, I guess, passion for the return to
work process. I see that as being one of those
instances where injured people really don't quite appreciate the legislation
(02:11):
that's there to assist and to support them. So a
forum like this where we can actually talk about that is,
I think, a really good thing.
S3 (02:19):
I love that you've mentioned the perspective of the injured worker,
because what often gets lost for people who have been
on a claim for a long time are their own
rights and responsibilities, but also how the scheme was designed
to support them. And that would be amazing if we
can dig into that a little bit today.
S2 (02:39):
Look, I think I'd start with what's without getting too technical,
it's known as chapter three of the Workplace Injury Management
and Workers Compensation Act. And that's the bit of the
legislation which confers the rights about return to work. It
outlines who's got to do what and the timeframes for
(02:59):
doing that. So, you know, one of those pieces of
legislation that did survive the fairly draconian 2012 changes to
the law. It is worker friendly. It is designed to
be supportive of the return to work process. And I
guess there's two aspects to that. One is that most
people don't know about what those rights are. And number
(03:22):
two is that insurers perhaps at times only give lip
service to their obligations.
S3 (03:27):
One of the things that I've noticed as well is
that when we're talking with insurers, the role of that
case manager becomes so critical. But we're talking about a
legislation that has been around for a very long time.
And yet perhaps the time of service of a case
manager is so limited. And their experience and so they
probably don't know a lot about the act either. And
(03:50):
so it's really important for what you're giving to us
today to explain what those obligations are. Would you like
to run through what that chapter three includes?
S2 (04:02):
Yeah, sure. The objectives are timely, safe and durable. Return
to work for people who are injured. That's a nice
sort of motherhood statement to start with, but from there,
it sort of goes into a bit more detail. And
it talks about what is an injury management plan when
there should be an injury management plan. And the short
(04:25):
answer is that if it's an injury that's going to
have more than seven days off work, then that is
a significant injury and it needs to be an injury
management plan. That plan then obviously crosses over into interactions
with both the employer and the insurer and the nominated
treating doctor. And so that plan is then formulated in
(04:47):
accordance with chapter three to achieve ideally the return to
work in a pre-injury capacity of the injured worker, or alternatively,
redeployment to a new role or reskilling to re-enter the
workforce into another role. Included in that chapter is some
(05:07):
rules about return to work, and this is one that's
not widely appreciated. But the legislation is very clear that
an employer must provide suitable duties. So that's not it
should or it can. It must provide suitable duties to
an injured worker. And we see quite often that that's
not followed. And there's a couple of, you know, instances
(05:30):
where that rule doesn't apply, but that's normally where it's
just not reasonably practical to provide suitable work. But for
most employers, I would have thought providing suitable duties, particularly
bigger employers, is is well within their capabilities. In terms
of the return to work process, we sometimes see instances
(05:50):
is where an employer or an insurer will say, well,
we don't need to provide suitable duties to you because
your claim has been declined. And that's absolutely 100% incorrect.
And there's a very clear obligation to provide suitable duties
and to provide an injury management plan, even if a
(06:11):
worker's compensation claim has been declined. So you can see
it's a fairly broad reaching piece of legislation. You've lodged
a claim, the insurer disputes it, and the employer still
has to provide suitable work to you. It still has
to be a plan for your recovery or your return
to work. So some really good starting points from there.
(06:32):
In that legislation, there's various obligations about who should do what,
and an injured worker does have an obligation to be
willing to participate in suitable work, and an insurer must
also endeavour to facilitate that. So injured workers got to cooperate,
employers got to provide suitable work, and the insurer is
(06:53):
supposed to coordinate this injury management plan.
S3 (06:57):
Are there any obligations from an employer to be able
to keep that social connection going for employees who have
been isolated through injury?
S2 (07:07):
I don't think there is an obligation as such. I
think what needs to be borne in mind is the
definition of suitable duties. It's often overlooked, but that is
not about your pre-injury role. Suitable duties consists of work
that's available within that employer, potentially external employers, that's within
(07:28):
the constraints or the confines of your work cover certificate.
And so that could be in a different department, different role.
So if you're back at work, even if it's in
a different department or a different role, there is that
level of, you know, social connection. You can still maintain
that suitable duties isn't about I was a concreter. And
(07:48):
that's that's all I do. If you've got some admin
skills or other skills, that's totally appropriate. Suitable duties are
a stepping stone in theory on that path to returning
to your pre-injury role, if that's possible. So it's often
not viewed like that. And that means that people just
get told there's nothing available in your section. Go home
(08:09):
and nothing good happens from there.
S3 (08:12):
One of the questions that that has come up, the
capacity on the certificate, is that just the capacity to work,
or should it also include your capacity to engage in
social activities, community activities, volunteering? So what is the definition
of the capacity on that certificate? Look, it.
S2 (08:31):
Is a reference to your employment capacity. There's no question
about that. But I do think it is a good
idea to be referencing non-work activities as appropriate. It will
be often the case that a psychologist might say, look,
you should be trying to get back in the community.
Why don't you go and do some volunteer work here?
(08:51):
I want you to get out and go to the gym,
take the dog for a walk, whatever it might be.
It's good if those things are on there. It makes
it harder for the insurer to attempt to undermine your
credibility by saying, well, look, you've demonstrated you can go
to the gym. We think you could be a personal trainer.
You can do volunteer work at retail. Why can't you
(09:13):
work in a paid retail capacity? So getting that on
the certificate stops those grey areas being turned against injured
people by an insurance company.
S3 (09:25):
It just makes me sad that we even have to
use that turn of phrase being turned on, because the
whole point of us all being in this industry, and
I've been in this industry for 30 years now, is
to help support people through that journey. We get a
lot of people towards a, I suppose, maybe towards an
end stage of a claim, and by then they're very
(09:46):
adversarial situations. There are generally lawyers involved. There's always a
confusion with the different payments that come, you know, there's
work injury damages, there's whole person impairment, and then you
might have redundancy from your workplace or you might have
a termination. What happens, we find, is that it all
(10:08):
gets confused inside a worker's comp claim. If you could
kind of explain that a little bit, because it might
help clarify a few things for people.
S2 (10:17):
Probably the key sort of concept is to just draw
a distinction between your worker's comp rights and your employment.
If you are terminated from your employment, then that finalizes
that employment relationship. It would see whatever your accrued entitlements
are paid out. That might be annual leave or long
service leave that does not impact your worker's compensation rights.
(10:39):
They're separate and distinct with a redundancy that similar concept
that you would be finalising your employment and your worker's
comp rights would survive. So that would see someone who's
terminated get paid out their leave entitlements, any notice period,
and then still keep receiving a weekly payment from their insurer.
(11:00):
From that point onwards, we're really talking about the insurer
and the employment relationship is finished. Through that worker's compensation journey.
There's obviously the weekly payments that are made which are
subject to the legislation. There can be a payment for
what's called permanent impairment compensation, and that's its own sort
of discrete entitlement for a loss of function. But broadly.
(11:22):
And then beyond that, there can be a claim for
work injury damages, which is made against your employer in name,
but in substance, it's money being paid to you by
the insurer. So the act of negligence would be the
actions or non-actions of your employer, but it's the insurer
that ultimately bears that responsibility. So I think the key
(11:45):
thing just sort of conceptually is there's my employment relationship
and there's my worker's comp rights that can get very blurred.
Some employers, for example, are making weekly payments to you.
So you feel like you're, you know, you don't really
have that connection with the insurer. Sometimes we're dealing with
self insurers, which makes it even more kind of hard
(12:06):
to draw that line. But that line most certainly is there.
And I think once people feel that and understand where
that line is, it perhaps gets a little bit easier
to sort of muddle through this process.
S3 (12:17):
The scheme can so easily become adversarial, but if you
take it at face value, it really should be an
opportunity for a worker who gets injured to be supported
in that recovery and be able to go back to work,
but it does require everybody to work together. The person
that's injured, the doctor, the insurer and the workplace, that
(12:38):
is the ultimate goal. And then that transition should be easy.
But what happens if there isn't that compliance and that
could be from anyone's direction? What would not complying look like? Yeah.
S2 (12:52):
So for an injured worker, non-compliance would be, in my view,
acting inconsistently with the WorkCover medical certificate. Now the insurer
might have a different view. They might say that not
complying is not acting in accordance with the injury management plan,
but the injury management plan should only be in accordance
with the WorkCover medical certificate. So if you're complying with
(13:16):
the core document and the plan is different, I don't
believe you're in breach at all. Non-compliance could be an employer.
And we see this a lot saying, look, I've been
giving you suitable duties for the last six weeks, but
now that the insurer's declined your claim, then I have
to stand you down. And that's, as we've said, clearly
(13:36):
not true. Clearly not accurate for the insurer. I mean,
their non-compliance is maybe it's a lot more subtle, but
it sort of consists of trying to control this process.
It's worth appreciating that the primacy of the work covered
medical certificate. Everything hinges and turns on that document, and
(13:58):
that can be a cause of frustration for an insurer.
So sometimes they're trying to impose themselves, for want of
a better term on that process, to attend a case conference,
to write to a GP, to query why this person's
only fit for 15 hours a week, not 20 hours
(14:18):
a week. And this sort of pressure on the GP's
to which some GPS buckle and effectively do what the
insurer wants. And the other one really is the role
of a rehab provider, which I think has strayed so
far away from its genuine intent that they, in practice,
operate more like an agent for the insurer than they
(14:39):
do as that facilitator to make it a cooperative process.
S3 (14:43):
So many things to say the scheme is was always
written for the person that was injured to be able
to recover. And it's so interesting to talk about the
certificate of capacity, because that is also not well understood
as part of a critical component to almost direct traffic.
(15:06):
You know, the clarity of which that document needs to
be written. And oftentimes GPS just don't have a lot
of experience. And being able to articulate what needs to
be in that certificate. And then secondly, how a worker
or an insurer or the rehab provider should all be
working together to help move people forward.
S2 (15:26):
Yeah, you you use the word clarity. Caroline, I think
that's a very apt word for what a work cover
medical certificate needs. And so the clarity would cover two
main things. I think one is what exactly are the
treatment needs? It's not enough to say something like psychology
if required. You know, what does that really mean? It
(15:50):
should be referring to a psychologist and it should denote
the frequency of those consultations. And it shouldn't say painkillers,
it should say the type and the dosage. So that
level of clarity is really important because that puts in
train its own sequence where that is submitted to the insurer,
(16:10):
and they've got a time frame to respond to that.
And if you've got that clarity, they can't then turn
around and say, oh, it wasn't clear. Didn't know what
your doctor meant, that get out of jail card disappears.
The other area where the clarity is required is on
their capacity for work, and it is open to doctors
to be a little bit creative around that. Certainly we're
(16:32):
talking about hours that you can do. We're talking about
restrictions on what you can and cannot do, be it
physically or psychologically, but it can also traverse things like
reporting structures. I can't return to work under that supervisor,
but I can return to work in theory with that supervisor.
And I've had instances, and I think it's a good
(16:53):
approach where a GP will say has capacity to return
to work but needs a mediation to resolve underlying issues.
So arguably they're going beyond the scope of what they should,
but it's giving clear direction about the return to work.
To return to the second part of your question, Caroline,
about a second employer, that again, requires that clarity. And
(17:16):
I was talking to a client where cannot return to
that workplace does have their own small business on the side,
which they're looking to, to build up. So their medical
certificate needs to make what they can and cannot do
very clear If it doesn't, that claimant, through no fault
of their own, really is at risk of a fraud
(17:37):
upon the WorkCover scheme because they might be certified unfit
to do that role, but are in fact doing extra
bits of work over here without that being disclosed and
permitted on the WorkCover certificate. Again, clarity about all of
those things is fundamental.
S3 (17:54):
Does that work in the same way then if you're
working for yourself? So if I have an injury, I
can't go back to the old job. I've now got
my own little business and I'm working 15 hours and
I'm able to send through evidence of that. Does the
insurer then increase my wages so I can actually reasonably
move on with my life?
S2 (18:14):
Yeah. Look, the short answer is they do. So the
insurers often struggle with that. But the short answer is
they they're required to work and get a little bit messy.
Is that the work you do right now may not
produce an income for 30, 60 or 90 days, so
there can be a little lag there in terms of
(18:34):
substantiating that I'm not only working 15 hours, but I'm
earning a minimum amount of money to have my pay
increase to the 95% of parity. So that can be
a little hiccup on the way through. But certainly that
is correct. If you're doing self-employment 15 hours a week
or more, earning in rough dollar terms a bit over
(18:56):
$200 per week, then you qualify to get your weekly
payments topped up to 95%.
S4 (19:02):
My business is like web design and digital marketing, and
like you said, you can go along and be doing
these amount of hours, but it might be a while
until you produce a sale or produce or complete the
job and get paid. How do I do that part?
Like if, let's say it takes 90 days till I get,
you know, an invoice paid from a large website project,
how do I then prove to them that I'm earning
(19:23):
200 odd dollars a week?
S2 (19:26):
Yeah. So two things you need to do practically. One
is that you need to be documenting the hours that
you're actually doing. So whether you keep a diary or
some sort of a schedule which you can send to them,
that it was three hours on a Monday, two on
a Tuesday, and at the end of the week you
can work out how many hours you've done. The second
thing you can do, which is really easy, is you
(19:47):
can send them the invoices. That is, I've issued this
invoice for the work I did this week. Now, whether
that money hits the till or not that week, very unlikely,
but it might do. But nonetheless, you're proving that this
is an income generating exercise.
S4 (20:02):
Okay, just one other question on something that you raised
a little earlier about reporting lines and employers being able
to change that. What happens if the employer refuses to
change that? Yeah.
S2 (20:13):
Look they can. And look, one of the one of
the remedies that's available with all of these injury management
disputes is an expedited hearing before the Personal Injury Commission.
We see this quite a bit with fairly large employers
that have any number of staff on maternity leave, annual leave,
long service leave, sick leave, you name it and then say,
(20:35):
we've got no suitable work for you. Now that's obviously
a fiction, so we can take a dispute like that
to the Personal Injury Commission and get an outcome on that.
So in theory, there's no reason why any non-compliance with
this chapter can't become the subject of a dispute before
the commission.
S4 (20:54):
Okay, great. Thanks, Scott, for that.
S3 (20:56):
In that example that we've just spoken about going then
back to the certificate of capacity, it would then make
sense that the first person, I guess, that you're talking
to about wanting to take on that extra work would
be the doctor to get them to ensure that you've
got that capacity so that you're then not working outside
(21:18):
that framework that they've said.
S5 (21:20):
That's exactly.
S2 (21:20):
Right. Might say unfit to work with this employer. Fit
to do ten hours per week in self-employment. And so
as long as what you're doing is consistent with that,
there's no problem with any of that at all. One
thing I might just touch on, increasingly seeing a lot
of injury management consultants being utilized in the return to
(21:41):
work process, and a lot of misinformation being put forward
by insurers about this. And I don't know if that's
deliberate or if that's just a consequence of the point
you made, Caroline, that, you know, sometimes these case managers
are fairly new and they don't really know what their
rights are. And so without getting too technical, there's an
independent medical examination. You're usually compelled to attend those there
(22:05):
for the insurer. They're dealing with more substantive issues like
liability and need for medical treatment. And injury management. Consultant
is not a specialist. They're a doctor that's chosen to
specialise in occupational medicine usually, and they're appointed to try
to assist where there is some uncertainty about exactly what
(22:28):
a GP is certifying. That's the theory. The reality is
that they tend to be quite intimidating. Will often call
your GP, tell them that they've got it wrong and
that they need to change their medical certificate. Their role
is not that they should be utilized with consent of
an injured worker, and that's quite often not the case
(22:50):
at all. You just get a letter saying you're seeing
an injury management consultant next month with no input at all.
So that's that's not on. And we're seeing letters from
insurers saying if you don't cooperate then we'll suspend your payments.
And that's not in accordance with the legislation. So the
role of an IMC is being misused. And that's, I
(23:10):
think hopefully an error but feels deliberate because it's an
increasing thing we've noticed over the last six or months
or so.
S3 (23:18):
We had a worker not long ago and he had
been asked to go to six emcees in a week. Wow.
It is incredible actually, from the position where we are,
how you are trying to help people recover and they'll say,
I'm too busy because of all of the appointments I'm
being sent to. We turn people who are injured into
(23:41):
full time injured people.
S6 (23:42):
Next week I've got an appointment with the injury management consultant,
but the email from the insurance company said that it
was mandatory that I attend. The appointment I'm having is
is with a psychiatrist, and if I don't attend, my
(24:04):
weekly payments will be cut. I googled the person and no,
they're not a psychiatrist. They're an this occupational doctor thing.
S2 (24:15):
Nothing. Nothing good is going to come from that. Peter.
So you have a right to say I'm sorry. I'm not.
I'm not consenting to attend. Can you define for me
what the issues are? Can you confirm you've raised your
concerns with my treating medical team? And to the extent
their response is inadequate, can you let me know how
(24:37):
it's inadequate so I won't be attending? I'm not refusing
to attend one, but I won't be attending until you've
outlined those matters for me.
S6 (24:46):
They tried this on late last year. I attended one
in June or something last year, and then they wanted
me to attend another one late last year and my
lawyer said no. Then they wanted me to attend another one.
I think it was January or February this year, and
the lawyer said no, and now they've come back again.
(25:10):
Want to me attend this next one? And the lawyer said, yeah,
go along to this one.
S3 (25:16):
And just in this case, Peter is working self-employed 12.
S6 (25:20):
Hours.
S3 (25:21):
Yeah. So he's actively working on his recovery as well. Yeah.
S2 (25:26):
Normally the the IMC process is driven by the insurer
not liking the nature or extent of your restrictions on
your medical certificate. So they want to get around that.
They've tried to get to your doctor. Your doctor is
not changing. So they engage in IMC to harangue you
(25:47):
and your and your GP into changing. It's increasingly, I think,
the case that a good proportion of lawyers know that
you don't have to attend an IMC. So the insurers
are now saying, you know, if you don't attend, we'll
stop your payments. That's not permitted. They're not allowed to
do that. So that threat of stopping your payments, it's
(26:08):
pretty persuasive. It's pretty new as well. But it's not
in accordance with the legislation.
S3 (26:14):
Might be worth following up and asking those questions.
S2 (26:17):
Look, with the vocational retraining, this is a real weakness
in the legislation. It's that the authority may pay for
vocational retraining, which is very different from the obligation I
spoke about where they must provide suitable duties. So vocational
training is not an automatic right. That doesn't mean you
(26:39):
cannot request it. And I again think it's appropriate for
a GP to be writing on their needs. Vocational retraining.
If you're a concreter and you've had a fusion to
your lumbar spine, you're not going back to concreting. And
if you've done that for any number of years, then
you're probably going to need to be retrained and reskilled
to return to less physical work. So absolutely, a GP
(27:02):
can be writing on that certificate needs vocational retraining. So
that'll be the starting point. It's then on the insurer
to respond to that, just as they would respond to
the GP asking for a course of physiotherapy or whatever
the case might be, and if they don't respond, then
arguably they're in breach of their obligations. But an issue
(27:25):
like that can be taken to the Personal Injury Commission
for consideration. But you've got to set that paper trail
up before you can do that.
S3 (27:33):
And that then really is that role, as I see it,
of that rehab provider is to be able to just
prove the evidence of this is a great career path.
These are the things and the courses that you could do.
And if you redirect, then this would be the opportunity
to have your life after worker's comp. That is a
(27:54):
transition path as opposed to.
S2 (27:56):
Something that to me is a is a really justified investment.
Some of the courses that are needed to get to
get people some basic qualifications are incredibly inexpensive. They cost
a lot less than the Im or the IMC appointment.
What we're seeing with rehab have providers is a very
non-genuine approach to this, where they'll organize a functional assessment fine.
(28:21):
They'll then do a vocational assessment. And the reports we
see arising from this talk about capacity for someone to
do certain jobs. Fine. Okay. And then they'll in theory
so they say contact employers within those industries where those
kind of jobs are available. So they'll say, I think
(28:43):
you could work as a light courier. And I've called
three different light courier agencies and they've all said they're
looking for someone and they'd be happy to take on
someone like you. That sounds really good, except that they
never communicate that to the injured worker. And that becomes
a piece of evidence used in what's called a work
capacity decision, by which the insurer looks to reduce your
(29:06):
entitlement to weekly payments. So it's a very non-genuine approach.
They were never actually trying to find you a role
or reskill you. They are preparing evidence for the insurer
to reduce your payments. And if you think about the
cost of the IMC, the functional assessment, the vocational, the
rehab provider would have to be 7 or $8000, which
(29:28):
would cover multiple training courses to reskill someone to return
to work. So it is a non-genuine process when conducted
like that.
S3 (29:39):
Scott, thank you so much for coming. We appreciate your
time and all of your wisdom, and we will hopefully
see you back again at some point.
S2 (29:48):
Hopefully there's some useful information in that, and I wish
you all the very best on your on your efforts
to return to work. Guys.
S3 (29:55):
We hope you enjoyed today's episode. I have learnt more
today in this last hour about injury management consultants, about
how to write a certificate of capacity and demystified things
that really hadn't been clear for a really long time.
I hope you enjoyed it as much as I did.
And if you have any questions, always feel free to
contact us and please feel free to contact Scott Dougal
(30:18):
at Carolyn O'Dea lawyers.
S1 (30:20):
Well, you've been listening. You may have found some of
these concepts challenging, so if you are needing help, please
reach out. For more information, you can follow us on
our socials or if you require urgent support, please reach
out to the police or the ambulance on 000 lifeline
on 13 1114. That's 13 1114 Beyondblue on one 302 24636.
(30:43):
That's 1300 224 636. The 24 hour mental health access line, which
is one 800 015, double one. That's one 800 015,
double one. And if you think you could benefit from
some legal advice, reach out to the Iro who can
recommend some lawyers or someone to help you with your
(31:04):
current legal case. Thank you for joining us and we'll
be back next time.
Hello and welcome to the My Social Support Network podcast,
a series to guide you along the path to recovery
while on workers compensation. In this series, we will answer
questions from you and provide information from experts and people
with lived experience currently going through worker's compensation and those
who have made their way to the other side. Through
these interactions, we'll be giving you tools, advice, but most importantly,
(00:24):
encouragement on what can be a stressful time when you're
also recovering from an injury sustained in your workplace.
S2 (00:31):
We're seeing letters from insurers saying if you don't cooperate,
then we'll suspend your payments, and that's not in accordance
with the legislation, and that's hopefully an error but feels deliberate.
S3 (00:43):
Worker's compensation can be a terrifying experience for some workers.
It can be very legally focused, and there are often
a lot of questions that seem unanswered. Today, we want
to take the time to talk to Scott Dougal, and
we're going to cover all things return to work. He's
a partner with Carroll and O'Dea lawyers, and he's an
(01:04):
accredited specialist in personal injury to help demystify some of
the questions, to empower injured workers, and also to be
able to clarify some of the things that injured workers
must do, and also the things that they can say
no to. Let's dive in. Scott, thank you so much
for coming on to the My Social Support Network podcast today.
(01:26):
It is such a joy to have someone with your
level of experience in the industry help answer and demystify
a few of the questions that the injured workers have,
either for us or for other people. Could you give
us a little bit of a background of the type
of role that you play within law to support injured
(01:46):
workers in the first place, just to add some context?
S2 (01:49):
Sure. Well, thanks, Caroline, and it's great to be with
you today. I'm an accredited specialist in personal injury law,
but my main focus is about workers compensation. And I've
got a particular, I guess, passion for the return to
work process. I see that as being one of those
instances where injured people really don't quite appreciate the legislation
(02:11):
that's there to assist and to support them. So a
forum like this where we can actually talk about that is,
I think, a really good thing.
S3 (02:19):
I love that you've mentioned the perspective of the injured worker,
because what often gets lost for people who have been
on a claim for a long time are their own
rights and responsibilities, but also how the scheme was designed
to support them. And that would be amazing if we
can dig into that a little bit today.
S2 (02:39):
Look, I think I'd start with what's without getting too technical,
it's known as chapter three of the Workplace Injury Management
and Workers Compensation Act. And that's the bit of the
legislation which confers the rights about return to work. It
outlines who's got to do what and the timeframes for
(02:59):
doing that. So, you know, one of those pieces of
legislation that did survive the fairly draconian 2012 changes to
the law. It is worker friendly. It is designed to
be supportive of the return to work process. And I
guess there's two aspects to that. One is that most
people don't know about what those rights are. And number
(03:22):
two is that insurers perhaps at times only give lip
service to their obligations.
S3 (03:27):
One of the things that I've noticed as well is
that when we're talking with insurers, the role of that
case manager becomes so critical. But we're talking about a
legislation that has been around for a very long time.
And yet perhaps the time of service of a case
manager is so limited. And their experience and so they
probably don't know a lot about the act either. And
(03:50):
so it's really important for what you're giving to us
today to explain what those obligations are. Would you like
to run through what that chapter three includes?
S2 (04:02):
Yeah, sure. The objectives are timely, safe and durable. Return
to work for people who are injured. That's a nice
sort of motherhood statement to start with, but from there,
it sort of goes into a bit more detail. And
it talks about what is an injury management plan when
there should be an injury management plan. And the short
(04:25):
answer is that if it's an injury that's going to
have more than seven days off work, then that is
a significant injury and it needs to be an injury
management plan. That plan then obviously crosses over into interactions
with both the employer and the insurer and the nominated
treating doctor. And so that plan is then formulated in
(04:47):
accordance with chapter three to achieve ideally the return to
work in a pre-injury capacity of the injured worker, or alternatively,
redeployment to a new role or reskilling to re-enter the
workforce into another role. Included in that chapter is some
(05:07):
rules about return to work, and this is one that's
not widely appreciated. But the legislation is very clear that
an employer must provide suitable duties. So that's not it
should or it can. It must provide suitable duties to
an injured worker. And we see quite often that that's
not followed. And there's a couple of, you know, instances
(05:30):
where that rule doesn't apply, but that's normally where it's
just not reasonably practical to provide suitable work. But for
most employers, I would have thought providing suitable duties, particularly
bigger employers, is is well within their capabilities. In terms
of the return to work process, we sometimes see instances
(05:50):
is where an employer or an insurer will say, well,
we don't need to provide suitable duties to you because
your claim has been declined. And that's absolutely 100% incorrect.
And there's a very clear obligation to provide suitable duties
and to provide an injury management plan, even if a
(06:11):
worker's compensation claim has been declined. So you can see
it's a fairly broad reaching piece of legislation. You've lodged
a claim, the insurer disputes it, and the employer still
has to provide suitable work to you. It still has
to be a plan for your recovery or your return
to work. So some really good starting points from there.
(06:32):
In that legislation, there's various obligations about who should do what,
and an injured worker does have an obligation to be
willing to participate in suitable work, and an insurer must
also endeavour to facilitate that. So injured workers got to cooperate,
employers got to provide suitable work, and the insurer is
(06:53):
supposed to coordinate this injury management plan.
S3 (06:57):
Are there any obligations from an employer to be able
to keep that social connection going for employees who have
been isolated through injury?
S2 (07:07):
I don't think there is an obligation as such. I
think what needs to be borne in mind is the
definition of suitable duties. It's often overlooked, but that is
not about your pre-injury role. Suitable duties consists of work
that's available within that employer, potentially external employers, that's within
(07:28):
the constraints or the confines of your work cover certificate.
And so that could be in a different department, different role.
So if you're back at work, even if it's in
a different department or a different role, there is that
level of, you know, social connection. You can still maintain
that suitable duties isn't about I was a concreter. And
(07:48):
that's that's all I do. If you've got some admin
skills or other skills, that's totally appropriate. Suitable duties are
a stepping stone in theory on that path to returning
to your pre-injury role, if that's possible. So it's often
not viewed like that. And that means that people just
get told there's nothing available in your section. Go home
(08:09):
and nothing good happens from there.
S3 (08:12):
One of the questions that that has come up, the
capacity on the certificate, is that just the capacity to work,
or should it also include your capacity to engage in
social activities, community activities, volunteering? So what is the definition
of the capacity on that certificate? Look, it.
S2 (08:31):
Is a reference to your employment capacity. There's no question
about that. But I do think it is a good
idea to be referencing non-work activities as appropriate. It will
be often the case that a psychologist might say, look,
you should be trying to get back in the community.
Why don't you go and do some volunteer work here?
(08:51):
I want you to get out and go to the gym,
take the dog for a walk, whatever it might be.
It's good if those things are on there. It makes
it harder for the insurer to attempt to undermine your
credibility by saying, well, look, you've demonstrated you can go
to the gym. We think you could be a personal trainer.
You can do volunteer work at retail. Why can't you
(09:13):
work in a paid retail capacity? So getting that on
the certificate stops those grey areas being turned against injured
people by an insurance company.
S3 (09:25):
It just makes me sad that we even have to
use that turn of phrase being turned on, because the
whole point of us all being in this industry, and
I've been in this industry for 30 years now, is
to help support people through that journey. We get a
lot of people towards a, I suppose, maybe towards an
end stage of a claim, and by then they're very
(09:46):
adversarial situations. There are generally lawyers involved. There's always a
confusion with the different payments that come, you know, there's
work injury damages, there's whole person impairment, and then you
might have redundancy from your workplace or you might have
a termination. What happens, we find, is that it all
(10:08):
gets confused inside a worker's comp claim. If you could
kind of explain that a little bit, because it might
help clarify a few things for people.
S2 (10:17):
Probably the key sort of concept is to just draw
a distinction between your worker's comp rights and your employment.
If you are terminated from your employment, then that finalizes
that employment relationship. It would see whatever your accrued entitlements
are paid out. That might be annual leave or long
service leave that does not impact your worker's compensation rights.
(10:39):
They're separate and distinct with a redundancy that similar concept
that you would be finalising your employment and your worker's
comp rights would survive. So that would see someone who's
terminated get paid out their leave entitlements, any notice period,
and then still keep receiving a weekly payment from their insurer.
(11:00):
From that point onwards, we're really talking about the insurer
and the employment relationship is finished. Through that worker's compensation journey.
There's obviously the weekly payments that are made which are
subject to the legislation. There can be a payment for
what's called permanent impairment compensation, and that's its own sort
of discrete entitlement for a loss of function. But broadly.
(11:22):
And then beyond that, there can be a claim for
work injury damages, which is made against your employer in name,
but in substance, it's money being paid to you by
the insurer. So the act of negligence would be the
actions or non-actions of your employer, but it's the insurer
that ultimately bears that responsibility. So I think the key
(11:45):
thing just sort of conceptually is there's my employment relationship
and there's my worker's comp rights that can get very blurred.
Some employers, for example, are making weekly payments to you.
So you feel like you're, you know, you don't really
have that connection with the insurer. Sometimes we're dealing with
self insurers, which makes it even more kind of hard
(12:06):
to draw that line. But that line most certainly is there.
And I think once people feel that and understand where
that line is, it perhaps gets a little bit easier
to sort of muddle through this process.
S3 (12:17):
The scheme can so easily become adversarial, but if you
take it at face value, it really should be an
opportunity for a worker who gets injured to be supported
in that recovery and be able to go back to work,
but it does require everybody to work together. The person
that's injured, the doctor, the insurer and the workplace, that
(12:38):
is the ultimate goal. And then that transition should be easy.
But what happens if there isn't that compliance and that
could be from anyone's direction? What would not complying look like? Yeah.
S2 (12:52):
So for an injured worker, non-compliance would be, in my view,
acting inconsistently with the WorkCover medical certificate. Now the insurer
might have a different view. They might say that not
complying is not acting in accordance with the injury management plan,
but the injury management plan should only be in accordance
with the WorkCover medical certificate. So if you're complying with
(13:16):
the core document and the plan is different, I don't
believe you're in breach at all. Non-compliance could be an employer.
And we see this a lot saying, look, I've been
giving you suitable duties for the last six weeks, but
now that the insurer's declined your claim, then I have
to stand you down. And that's, as we've said, clearly
(13:36):
not true. Clearly not accurate for the insurer. I mean,
their non-compliance is maybe it's a lot more subtle, but
it sort of consists of trying to control this process.
It's worth appreciating that the primacy of the work covered
medical certificate. Everything hinges and turns on that document, and
(13:58):
that can be a cause of frustration for an insurer.
So sometimes they're trying to impose themselves, for want of
a better term on that process, to attend a case conference,
to write to a GP, to query why this person's
only fit for 15 hours a week, not 20 hours
(14:18):
a week. And this sort of pressure on the GP's
to which some GPS buckle and effectively do what the
insurer wants. And the other one really is the role
of a rehab provider, which I think has strayed so
far away from its genuine intent that they, in practice,
operate more like an agent for the insurer than they
(14:39):
do as that facilitator to make it a cooperative process.
S3 (14:43):
So many things to say the scheme is was always
written for the person that was injured to be able
to recover. And it's so interesting to talk about the
certificate of capacity, because that is also not well understood
as part of a critical component to almost direct traffic.
(15:06):
You know, the clarity of which that document needs to
be written. And oftentimes GPS just don't have a lot
of experience. And being able to articulate what needs to
be in that certificate. And then secondly, how a worker
or an insurer or the rehab provider should all be
working together to help move people forward.
S2 (15:26):
Yeah, you you use the word clarity. Caroline, I think
that's a very apt word for what a work cover
medical certificate needs. And so the clarity would cover two
main things. I think one is what exactly are the
treatment needs? It's not enough to say something like psychology
if required. You know, what does that really mean? It
(15:50):
should be referring to a psychologist and it should denote
the frequency of those consultations. And it shouldn't say painkillers,
it should say the type and the dosage. So that
level of clarity is really important because that puts in
train its own sequence where that is submitted to the insurer,
(16:10):
and they've got a time frame to respond to that.
And if you've got that clarity, they can't then turn
around and say, oh, it wasn't clear. Didn't know what
your doctor meant, that get out of jail card disappears.
The other area where the clarity is required is on
their capacity for work, and it is open to doctors
to be a little bit creative around that. Certainly we're
(16:32):
talking about hours that you can do. We're talking about
restrictions on what you can and cannot do, be it
physically or psychologically, but it can also traverse things like
reporting structures. I can't return to work under that supervisor,
but I can return to work in theory with that supervisor.
And I've had instances, and I think it's a good
(16:53):
approach where a GP will say has capacity to return
to work but needs a mediation to resolve underlying issues.
So arguably they're going beyond the scope of what they should,
but it's giving clear direction about the return to work.
To return to the second part of your question, Caroline,
about a second employer, that again, requires that clarity. And
(17:16):
I was talking to a client where cannot return to
that workplace does have their own small business on the side,
which they're looking to, to build up. So their medical
certificate needs to make what they can and cannot do
very clear If it doesn't, that claimant, through no fault
of their own, really is at risk of a fraud
(17:37):
upon the WorkCover scheme because they might be certified unfit
to do that role, but are in fact doing extra
bits of work over here without that being disclosed and
permitted on the WorkCover certificate. Again, clarity about all of
those things is fundamental.
S3 (17:54):
Does that work in the same way then if you're
working for yourself? So if I have an injury, I
can't go back to the old job. I've now got
my own little business and I'm working 15 hours and
I'm able to send through evidence of that. Does the
insurer then increase my wages so I can actually reasonably
move on with my life?
S2 (18:14):
Yeah. Look, the short answer is they do. So the
insurers often struggle with that. But the short answer is
they they're required to work and get a little bit messy.
Is that the work you do right now may not
produce an income for 30, 60 or 90 days, so
there can be a little lag there in terms of
(18:34):
substantiating that I'm not only working 15 hours, but I'm
earning a minimum amount of money to have my pay
increase to the 95% of parity. So that can be
a little hiccup on the way through. But certainly that
is correct. If you're doing self-employment 15 hours a week
or more, earning in rough dollar terms a bit over
(18:56):
$200 per week, then you qualify to get your weekly
payments topped up to 95%.
S4 (19:02):
My business is like web design and digital marketing, and
like you said, you can go along and be doing
these amount of hours, but it might be a while
until you produce a sale or produce or complete the
job and get paid. How do I do that part?
Like if, let's say it takes 90 days till I get,
you know, an invoice paid from a large website project,
how do I then prove to them that I'm earning
(19:23):
200 odd dollars a week?
S2 (19:26):
Yeah. So two things you need to do practically. One
is that you need to be documenting the hours that
you're actually doing. So whether you keep a diary or
some sort of a schedule which you can send to them,
that it was three hours on a Monday, two on
a Tuesday, and at the end of the week you
can work out how many hours you've done. The second
thing you can do, which is really easy, is you
(19:47):
can send them the invoices. That is, I've issued this
invoice for the work I did this week. Now, whether
that money hits the till or not that week, very unlikely,
but it might do. But nonetheless, you're proving that this
is an income generating exercise.
S4 (20:02):
Okay, just one other question on something that you raised
a little earlier about reporting lines and employers being able
to change that. What happens if the employer refuses to
change that? Yeah.
S2 (20:13):
Look they can. And look, one of the one of
the remedies that's available with all of these injury management
disputes is an expedited hearing before the Personal Injury Commission.
We see this quite a bit with fairly large employers
that have any number of staff on maternity leave, annual leave,
long service leave, sick leave, you name it and then say,
(20:35):
we've got no suitable work for you. Now that's obviously
a fiction, so we can take a dispute like that
to the Personal Injury Commission and get an outcome on that.
So in theory, there's no reason why any non-compliance with
this chapter can't become the subject of a dispute before
the commission.
S4 (20:54):
Okay, great. Thanks, Scott, for that.
S3 (20:56):
In that example that we've just spoken about going then
back to the certificate of capacity, it would then make
sense that the first person, I guess, that you're talking
to about wanting to take on that extra work would
be the doctor to get them to ensure that you've
got that capacity so that you're then not working outside
(21:18):
that framework that they've said.
S5 (21:20):
That's exactly.
S2 (21:20):
Right. Might say unfit to work with this employer. Fit
to do ten hours per week in self-employment. And so
as long as what you're doing is consistent with that,
there's no problem with any of that at all. One
thing I might just touch on, increasingly seeing a lot
of injury management consultants being utilized in the return to
(21:41):
work process, and a lot of misinformation being put forward
by insurers about this. And I don't know if that's
deliberate or if that's just a consequence of the point
you made, Caroline, that, you know, sometimes these case managers
are fairly new and they don't really know what their
rights are. And so without getting too technical, there's an
independent medical examination. You're usually compelled to attend those there
(22:05):
for the insurer. They're dealing with more substantive issues like
liability and need for medical treatment. And injury management. Consultant
is not a specialist. They're a doctor that's chosen to
specialise in occupational medicine usually, and they're appointed to try
to assist where there is some uncertainty about exactly what
(22:28):
a GP is certifying. That's the theory. The reality is
that they tend to be quite intimidating. Will often call
your GP, tell them that they've got it wrong and
that they need to change their medical certificate. Their role
is not that they should be utilized with consent of
an injured worker, and that's quite often not the case
(22:50):
at all. You just get a letter saying you're seeing
an injury management consultant next month with no input at all.
So that's that's not on. And we're seeing letters from
insurers saying if you don't cooperate then we'll suspend your payments.
And that's not in accordance with the legislation. So the
role of an IMC is being misused. And that's, I
(23:10):
think hopefully an error but feels deliberate because it's an
increasing thing we've noticed over the last six or months
or so.
S3 (23:18):
We had a worker not long ago and he had
been asked to go to six emcees in a week. Wow.
It is incredible actually, from the position where we are,
how you are trying to help people recover and they'll say,
I'm too busy because of all of the appointments I'm
being sent to. We turn people who are injured into
(23:41):
full time injured people.
S6 (23:42):
Next week I've got an appointment with the injury management consultant,
but the email from the insurance company said that it
was mandatory that I attend. The appointment I'm having is
is with a psychiatrist, and if I don't attend, my
(24:04):
weekly payments will be cut. I googled the person and no,
they're not a psychiatrist. They're an this occupational doctor thing.
S2 (24:15):
Nothing. Nothing good is going to come from that. Peter.
So you have a right to say I'm sorry. I'm not.
I'm not consenting to attend. Can you define for me
what the issues are? Can you confirm you've raised your
concerns with my treating medical team? And to the extent
their response is inadequate, can you let me know how
(24:37):
it's inadequate so I won't be attending? I'm not refusing
to attend one, but I won't be attending until you've
outlined those matters for me.
S6 (24:46):
They tried this on late last year. I attended one
in June or something last year, and then they wanted
me to attend another one late last year and my
lawyer said no. Then they wanted me to attend another one.
I think it was January or February this year, and
the lawyer said no, and now they've come back again.
(25:10):
Want to me attend this next one? And the lawyer said, yeah,
go along to this one.
S3 (25:16):
And just in this case, Peter is working self-employed 12.
S6 (25:20):
Hours.
S3 (25:21):
Yeah. So he's actively working on his recovery as well. Yeah.
S2 (25:26):
Normally the the IMC process is driven by the insurer
not liking the nature or extent of your restrictions on
your medical certificate. So they want to get around that.
They've tried to get to your doctor. Your doctor is
not changing. So they engage in IMC to harangue you
(25:47):
and your and your GP into changing. It's increasingly, I think,
the case that a good proportion of lawyers know that
you don't have to attend an IMC. So the insurers
are now saying, you know, if you don't attend, we'll
stop your payments. That's not permitted. They're not allowed to
do that. So that threat of stopping your payments, it's
(26:08):
pretty persuasive. It's pretty new as well. But it's not
in accordance with the legislation.
S3 (26:14):
Might be worth following up and asking those questions.
S2 (26:17):
Look, with the vocational retraining, this is a real weakness
in the legislation. It's that the authority may pay for
vocational retraining, which is very different from the obligation I
spoke about where they must provide suitable duties. So vocational
training is not an automatic right. That doesn't mean you
(26:39):
cannot request it. And I again think it's appropriate for
a GP to be writing on their needs. Vocational retraining.
If you're a concreter and you've had a fusion to
your lumbar spine, you're not going back to concreting. And
if you've done that for any number of years, then
you're probably going to need to be retrained and reskilled
to return to less physical work. So absolutely, a GP
(27:02):
can be writing on that certificate needs vocational retraining. So
that'll be the starting point. It's then on the insurer
to respond to that, just as they would respond to
the GP asking for a course of physiotherapy or whatever
the case might be, and if they don't respond, then
arguably they're in breach of their obligations. But an issue
(27:25):
like that can be taken to the Personal Injury Commission
for consideration. But you've got to set that paper trail
up before you can do that.
S3 (27:33):
And that then really is that role, as I see it,
of that rehab provider is to be able to just
prove the evidence of this is a great career path.
These are the things and the courses that you could do.
And if you redirect, then this would be the opportunity
to have your life after worker's comp. That is a
(27:54):
transition path as opposed to.
S2 (27:56):
Something that to me is a is a really justified investment.
Some of the courses that are needed to get to
get people some basic qualifications are incredibly inexpensive. They cost
a lot less than the Im or the IMC appointment.
What we're seeing with rehab have providers is a very
non-genuine approach to this, where they'll organize a functional assessment fine.
(28:21):
They'll then do a vocational assessment. And the reports we
see arising from this talk about capacity for someone to
do certain jobs. Fine. Okay. And then they'll in theory
so they say contact employers within those industries where those
kind of jobs are available. So they'll say, I think
(28:43):
you could work as a light courier. And I've called
three different light courier agencies and they've all said they're
looking for someone and they'd be happy to take on
someone like you. That sounds really good, except that they
never communicate that to the injured worker. And that becomes
a piece of evidence used in what's called a work
capacity decision, by which the insurer looks to reduce your
(29:06):
entitlement to weekly payments. So it's a very non-genuine approach.
They were never actually trying to find you a role
or reskill you. They are preparing evidence for the insurer
to reduce your payments. And if you think about the
cost of the IMC, the functional assessment, the vocational, the
rehab provider would have to be 7 or $8000, which
(29:28):
would cover multiple training courses to reskill someone to return
to work. So it is a non-genuine process when conducted
like that.
S3 (29:39):
Scott, thank you so much for coming. We appreciate your
time and all of your wisdom, and we will hopefully
see you back again at some point.
S2 (29:48):
Hopefully there's some useful information in that, and I wish
you all the very best on your on your efforts
to return to work. Guys.
S3 (29:55):
We hope you enjoyed today's episode. I have learnt more
today in this last hour about injury management consultants, about
how to write a certificate of capacity and demystified things
that really hadn't been clear for a really long time.
I hope you enjoyed it as much as I did.
And if you have any questions, always feel free to
contact us and please feel free to contact Scott Dougal
(30:18):
at Carolyn O'Dea lawyers.
S1 (30:20):
Well, you've been listening. You may have found some of
these concepts challenging, so if you are needing help, please
reach out. For more information, you can follow us on
our socials or if you require urgent support, please reach
out to the police or the ambulance on 000 lifeline
on 13 1114. That's 13 1114 Beyondblue on one 302 24636.
(30:43):
That's 1300 224 636. The 24 hour mental health access line, which
is one 800 015, double one. That's one 800 015,
double one. And if you think you could benefit from
some legal advice, reach out to the Iro who can
recommend some lawyers or someone to help you with your
(31:04):
current legal case. Thank you for joining us and we'll
be back next time.
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