Frequently asked questions
Whilst an IME can be arranged by a WorkSafe Agent for any number of reasons, typically Agents arrange these assessments to seek further guidance and clarification about a worker's capacity for work, work restrictions and treatment. An IME's opinion can differ to that of a GP's for any number of reasons, but in many cases this occurs because the IME, as a specialist in the field (for example, an orthopaedic surgeon or psychiatrist), after reviewing comprehensive notes on the worker's medical history, forms a different view to that of the GP.
It is the Agent's role to review the difference of opinions and take further action in respect of the worker's claim if appropriate. This usually includes forwarding the IME report to the worker's GP and communicating with them about the IME's recommendations. Depending on the GP's response, an Agent representative such as a Case Manager, Injury Management Advisor or Return to Work Specialist, often following consultation with a Medical Advisor (doctor), will then make decisions about the most appropriate course of action with respect to the worker's compensation entitlements. This might include, but is not limited to:
- seeking clarification from the IME
- organising a GP RTW Case Conference
- organising for occupational rehabilitation services to commence or for alternative services to be considered
- recommending that an employer review whether RTW arrangements need to be revised, new arrangements made, or withdrawn
- scheduling an interview with the worker to discuss the worker's rights and obligations and enhance their chances of returning to work
- reviewing the worker's ongoing entitlement to weekly payments or medical and like services.
It is the RTW Coordinator's role to ensure employer compliance with their RTW obligations under the legislation by continuing to take into account all available medical information, including both the GP and IME opinions, to plan the worker's return to work and to provide suitable or pre-injury employment. This can be difficult where medical opinions differ entirely in their views about the worker's capacity. Therefore it is recommended that rather than self-selecting an opinion to follow, that you discuss with your WorkSafe Agent as soon as possible how best to develop appropriate return to work arrangements in the circumstances. You should then further consult with your worker any changes to these return to work arrangements and why these have been proposed.
Overwhelmingly doctors do their best to work with employers during the return to work process. Sometimes doctors may appear to be uncooperative but they may actually just be flat out dealing with ill patients, or they may not know what you need.
Approximately 3% of your average doctor's patient list is made up of workers with workers compensation claims and doctors don't typically receive any training on assisting their patients back to work. So, don't assume that doctors are deliberately being uncooperative; it's likely they don't know what you need/want. Making things as easy and clear for them as you can will help you both!
Only 41% of doctors believe that their patient's employer wants their patient back at work. Only 27% believe that the employer will stick to the restrictions they outline on their certificate and only 22% have confidence in the employer's RTW Coordinator. Based on these perceptions, and before you come to the conclusion that your worker's doctor is being uncooperative, you should talk to the doctor about the best way to communicate with them and seek to reassure your worker's doctor that:
- their patient is a vital part of your workplace and you want to help them in any way you can with their recovery
- your workplace is safe (issues that caused the injury have been resolved, if appropriate)
- you have suitable duties available for them as soon as they are ready
- their patient will be supported and monitored throughout their recovery
- you will contact them if a restriction they outline in their certificates is unclear
- monitor and support their patient throughout their recovery and RTW.
Make sure you are prepared before any contact with the doctor – your conversations and communications should reassure the doctor that you are capable and trustworthy and that you know the limits of your expertise (for example, that you will ask for help when you need it and not make assumptions about their patient's capabilities).
Show the doctor that you want to support their patient and be proactive; don't wait for the doctor to call you.
Applying the principles above will improve your chances of having an effective relationship with your worker's doctor. They should make your life easier, though it's worth noting that doctors are not obliged to respond to employer queries.
While the majority of doctors, despite their busy schedules, make time for employer queries, unfortunately some doctors refuse to acknowledge emails, letters or phone calls in relation to return to work. Although there is not much that can be done to force a response, you should document these attempts.
As an employer, the obligation to consult with the worker's treating health practitioner is not negated because you have to deal with an 'uncooperative' doctor.
It's important that you can demonstrate that you have made all reasonable efforts to consult with your worker's doctor.
WorkSafe continues to actively work with doctors to improve their understanding of workers compensation matters and how they can assist both workers and employers to achieve early, safe and sustainable return to work outcomes.
Regardless of whether you think your worker's claim should be accepted or not, provide your Agent with all relevant information as early as possible to assist your Agent to make the appropriate eligibility decision.
In the meantime, assume the claim will be accepted and work towards a positive return to work outcome based on this assumption. In line with your return to work obligations under the Accident Compensation Act 1985, plan your worker's return to work, offer them suitable duties and consult with them and their GP.
Lamenting claims acceptance only increases the likelihood of strained relationships between you between you and the injured worker and is certain to result in an uphill battle for you, regardless of whether the claim is actually accepted or not. While employers have the right to dispute claims, disputed claims that are subsequently accepted have worse RTW rates than those employers that 'get on with getting on'! and progress RTW activity regardless of their concerns.
An employer must provide their worker with suitable or pre-injury employment to the extent it is reasonable to do so. In most circumstances it will be reasonable for employers to provide suitable or pre-injury employment that is appropriate to a worker's capacity for work. Completing the WorkSafe step by step guide to suitable employment worksheet will help you work through the options available in your workplace as well as document your efforts to provide suitable employment.
If you believe you don't have any suitable duties to offer your worker you should contact your Agent as soon as possible to discuss the issue. Your Agent may refer an occupational rehabilitation (OR) provider to your workplace, if appropriate. OR providers may be able to visit your workplace and assess tasks that may be suitable for the worker. Even in circumstances where employers report being certain that they have no suitable duties available in the workplace, more often than not, the result of a visit by an OR provider or by a member of the Return to Work Inspectorate is the identification of suitable duties.
My worker is not participating in the return to work process
In the vast majority of cases injured workers return to work as soon as they can do so safely. Returning to work after injury is a crucial part of a worker's rehabilitation and, similar to employers, workers have a number of return to work obligations they must comply with (listed below):
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 their 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 their capacity for work, rehabilitation progress or future employment prospects.
5. Actively participate and cooperate with the WorkSafe Agent in an interview to enhance their opportunities to return to work.
If you believe that your worker is not complying with their return to work obligations, talk to them- they may have a very good reason for this. Remember - good, early communication makes most issues go away. Below is a list of a few topics you could discuss with your worker that may help shed light
on the 'reasonableness' of any perceived or actual non-compliance:
* ability to travel to and from work or appointments
* changes in medication
* changes in work capacity
* relationships with individuals involved in the return to work process
* ability to perform agreed return to work arrangements
* issues/concerns the worker has.
If you still believe after your discussion that the worker is unreasonably not complying with their return to work obligations, talk to your Agent about your concerns. Your Agent will most likely contact your worker and try to better understand the worker's rationale for not complying and resolve the issue where possible. After this step, if the worker is still deemed to be non-compliant, your Agent may suspend your worker's weekly payments and may progress to terminating them if the worker continues not to comply.
Your Agent will undertake the following steps when managing a worker who is not making reasonable efforts to participate in the return to work process. Note, however, that each step is individual and the process may stop at any time based on worker activity/contact:
* contact the worker to discuss return to work obligations and the worker's perceived/actual non-compliance …
- if the Agent then forms the opinion that the worker is unreasonably being non-compliant with their obligations, the Agent will proceed to issue a warning of possible suspension of weekly payments
* issue a warning notice for a period of 14 to 60 days clearly outlining what the worker needs to do to demonstrate compliance with their RTW obligations
* following the warning period, the Agent will contact the worker ....
- if the Agent forms the view that the worker is still not complying with their RTW obligations the Agent can suspend weekly payments for 28 days
* following the suspension period, the Agent will contact the worker ....
- if the Agent forms the view that the worker is still not complying with their obligations they can terminate weekly payments
- in some situations, a notice can be issued seeking to cease and determine weekly payments so that weekly payments are no longer payable on the claim at all. This is a big steps and it is up to the Agent to determine whether the worker's non-compliance meets this criteria.
It's important to note that it will generally not be reasonable for a worker to be deemed as non-compliant if you, as their employer, have not met your own return to work obligations. This principle applies even in situations where you believe or know that your worker is not meeting the own return to work obligations. Your Agent will manage your worker's return to work non-compliance, just keep them informed if there is something it would be useful for them to know.
The obligation for an employer to provide an injured worker with pre-injury and/or suitable employment is called the 'employment obligation period'. While the obligation exists for 52 weeks its important to note that this is not necessarily 52 consecutive calendar weeks as it only takes into account those periods that a worker has an incapacity for work (resulting from or materially contributed to by the injury to which the employment obligation relates). Calculating your own employer obligation period can be more complicated than it seems, so if you are at all unsure, you should talk with your Agent and ask for their advice.
The employer obligation period does not include:
* any period during which the worker does not have an incapacity for work
* any period commencing from the date the worker's claim has been rejected by the Agent or self-insurer and ending on the date that a direction or recommendation of a Conciliation Officer or a court determination that weekly payments are to be paid is made (unless the employer continues to provide suitable or pre-injury employment during that time)
* any period commencing on the date that WorkSafe sets aside a decision to accept a claim for compensation against an employer, and ending on the date that a direction or recommendation of a Conciliation Officer or a court determination that weekly payments are to be paid is made (unless the employer continues to provide suitable or pre-injury employment during that time)
* any period commencing on the date a decision to revoke a direction of a Conciliation Officer to pay weekly payments is made and ending on the date that weekly payments resume (unless the employer continues to provide suitable or pre-injury employment during that time).
The end of the requirement to provide suitable or pre-injury employment does not necessarily mean that an employer can terminate a worker's employment. There are employment and anti-discrimination obligations in other laws that an employer must also meet in relation to a worker's employment arrangements. There may also be a relevant workplace agreement. WorkSafe strongly recommends that employers become familiar with these and other relevant requirements.
Whilst not mandatory, it can be beneficial to continue to meet the employment obligation during a period that a rejected claim is being disputed. This ensures continuity and is good for the worker's recovery and return to work. Also, the time that an employer continues to provide suitable or pre-injury employment is counted towards the fulfilment of their obligation to provide suitable and pre-injury employment for the 52 week employment obligation period.
None of us leave our personalities at the door when we enter our workplace. When someone is injured—psychologically or physically or both—their personality and coping strategies will often determine how they approach rehabilitation and RTW.
It is obviously not helpful or advisable to accuse people of having a personality 'disorder' even if they are challenging to manage. As a guideline, however, those workers who have a sense of 'justice' or entitlement or are avoidant can often be difficult to help with RTW planning and may interpret
actions by the employer, WorkSafe Agent or the occupational rehabilitation (OR) provider negatively or cynically. To give some idea of what I mean, let's take these three different perspectives and look at how a RTW co-ordinator might respond to get the best outcome for both the employer and the injured
a) Sense of (in)justice
Possible scenario: the injured worker is keen to see that whoever or whatever is 'to blame' for their injury is brought to account and struggles to get past this issue even if there is an outcome from the investigation of the incident that lead to their injury.
RTW Coordinator response: the worker's need for revenge, retribution or someone taking responsibility for the worker's injury is understandable but even where found, cannot turn back the clock. Make sure that you are empathetic and involve the worker and keep them informed in any incident investigation whilst still maintaining the focus on the present. This includes concentrating on the worker's safe return to work and any specific parameters and requirements of a RTW plan to help the worker move forward.
b) Sense of entitlement
Possible scenario: the injured worker is focused on their compensation entitlements; for example, to be fully recovered before RTW, to have their body back the way it was before, their need for a range of services etc to be paid for by the employer/Agent before they can get back to work.
RTW Coordinator response: the worker's need to have their injury and its effects acknowledged means it is important to "give a bit to get a bit" here. For example, you might want to permit the worker to leave work early to see a treating practitioner as a way of demonstrating your validation of their need for treatment and support during their RTW and include this in their RTW plan.
c) Avoidant response
Possible scenario: the injured worker won't answer phone calls or talk to anyone from work. They (and sometimes their treating health practitioners as well) are difficult to engage. The worker does not seem to want to RTW.
RTW Coordinator response: a team approach is required here. With the worker's consent, you could meet with the worker and their treating health practitioner so that any fears and concerns about a RTW can be addressed. Advise the worker that they can also have a support person present if they would feel more comfortable.
In some cases it may be also appropriate for you and your WorkSafe Agent to advise your worker of their obligations. If you remain stuck with this issue, talk to your WorkSafe Agent and discuss your concerns. Your WorkSafe Agent may involve a Medical Advisor (MA) to assist.
Clinical & Counselling Psychologist
Consultant to and IME examiner for WorkSafe Victoria, the TAC and Comcare
No – WorkSafe doesn't have a list of preferred doctors. It's also worth remembering that as long as a doctor is registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student) workers can choose to see any doctor they like.
You can, however, recommend a doctor to your worker and they are free to choose to see them or not. If you are looking to find a doctor in your area who treats WorkSafe patients, we recommend you:
* meet with local practices/doctors and talk with them about their experience working with injured workers and their practice in promoting the health benefits of safe work
* talk to larger local businesses who are likely to bected to a clinic or doctor
* check out the finalists and winners of WorkSafe's Treating Health Practitioner awards.
For other healthcare professionals, WorkSafe has a network provider program which includes occupational physiotherapists, occupational therapists and pain management program providers. These providers have skills and experience in managing injured workers with an emphasis on the health benefits of returning to safe and sustainable work after injury that can provide assistance and support to your injured workers during the return to work period. To search for your nearest network provider, refer to WorkSafe's website:
- Better return to work rates
- 10% better 3 months after first treatment and 5-15% better at 6 months compared to 'general'
- Improved function
- less growth in attendant care costs compared to claims that received non-network Occupational Therapy treatment
- Improved access
- An average of only 17 days wait between approval of a program by the Agent and the initial assessment
- Improved function
- Individuals require less income support and treatment (including physio) 12 months after completing the program.
Yes. Even when injured workers are totally unfit for duties, you must still undertake return to work planning. This includes:
· obtaining relevant information about the worker's incapacity for work
· considering reasonable workplace support, aids or modifications to assist in the worker's return to work
· assessing and proposing options for suitable employment or pre-injury employment
· consultation with the worker, treating health practitioner (with the consent of the worker) and occupational rehabilitation provider (where involved)
· providing the worker with clear, accurate and current details of their return to work arrangements, and
· monitoring the worker's progress.
This obligation is about: preparing for the eventual return to work of your worker; keeping them engaged in the return to work process, even while they are not at work; making sure that you have the latest return to work information; and ensuring that should the worker be certified as fit to return, you are prepared to have them back in the workplace in safe work.
Following injury, ideally an injured worker will return to work with their pre-injury employer. However, sometimes a WorkSafe Agent may decide that suitable employment with a new employer is a more appropriate goal. This decision can be made at any time, but would most likely occur when the employment obligation period of 52 weeks has been satisfied.
Reasons to pursue suitable employment with a new employer may include, but are not limited to:
· medical evidence suggesting the worker does not have a capacity for any of the duties or jobs available at the pre-injury workplace, and this is unlikely to change in the foreseeable future
· the worker has relocated and a return to work is no longer realistic at the pre-injury workplace
· the worker has resigned from the pre-injury employment
· the employer no longer has pre-injury or suitable employment available
· the employer has terminated the worker's pre-injury employment
· the employer has ceased to trade.
Under the Accident Compensation Act 1985 (the Act) a worker needs to get a medical certificate or certificate of capacity if they are seeking to be paid loss of income compensation (weekly payments) due to a work-related injury.
Some workers may not be claiming weekly payments, but they still don't have a full capacity for work, and as such require alternative duties or hours, e.g. they are not losing any income but cannot return to their full pre-injury role and use certificates of capacity to advise their employer of this.
As an employer, you are obliged to take into account relevant information about a worker's capacity when planning their return to work. In both of these scenarios the employer would need to take into account all relevant information, such as the nature of the worker's injury or illness, the details of the worker's incapacity for work and what they are able to do, when the worker is likely to return to work and/or how long it will be before the worker can return to their pre-injury duties, any other factors that may have an impact on the worker's capacity (e.g. to travel, effects of medication, etc.), type and frequency of assistance or support required (e.g. physiotherapy, etc.) and consult with their worker and the treating health practitioner about the worker's work capacity.
If your worker is seeking to return to full pre-injury work, then getting a certificate or document from the worker's treating health practitioner confirming they have a full work capacity is not mandatory under the Act but is good practice, and will ensure you have a record of the treating health practitioner's advice to the patient.
For a GP to give a patient clearance to return to full pre-injury work they will normally require confidence that the patient's employer will provide the appropriate support on their return to work. You should therefore continue to monitor your worker's return to work carefully, as required, to ensure they are:
1) coping with any return to work, and
2) being provided with a working environment that, so far as is reasonably practicable, is safe and without risks to health in line with the Occupational Health and Safety Act 2004
Employers must bear in mind that employer/employee relationships are, in addition to the Act, also governed by industrial laws, equal opportunity/anti-discrimination laws and occupational health and safety laws etc. This means that what might be a legitimate action/omission under one law might not be under another and employers must be conscious of this.
We would recommend that you discuss the individual circumstances of any case with your WorkSafe Agent and consider independent legal advice if you remain unsure about what to do next.