Sustaining a Work Injury - The Obligations of Employees and Employers

Have you sustained a work injury and are not sure of your return to work obligations? What are your rights? Or if you are an employer, how should you best handle a workers injury and what are your responsibilities?

Kerri and Gemma recently sat down to chat with Jess Rouse of 2NM - AM981 radio in Muswellbrook to talk through some of the key things to keep in mind:

Jess:  Jess is with you this morning for Hunter Valley today. Workers compensation.  What you have to do if something does happen to work, but then also what are the responsibilities of your employer.  Well I caught up with Kerri and Gemma from Shaw and Bunner Legal in Branxton.  They know it all, they filled me in.  Alright ladies, so this morning we are talking about workers compensation and returning to work.  Now, of course, with the industries that we do have here around the Upper Hunter, big mining industries and whole host of others as well. 

So it is pretty important that everyone should be aware of, just in case, something does happen, and Kerri if there is an injury in the work force, if you are hurt what should be done very first thing.

Kerri:  So if a worker has sustained an injury at work, there were a few key things that should be done.  Firstly, a worker should obtain treatment for the injury and secondly, very important, they need to report the injury to their employer.  So a worker must notify their employer that they have sustained a workplace injury or illness and give them some information about it.  So the date and time of the injury or the period over which the injury emerged, a description of how the injury happened and tell them what the injury is.  So a worker can also notify the employer’s insurer if they want to, however an employer has an obligation to do so.

Jess:  So from an employer’s perspective what should they be doing if one of their employee is injured?

Gemma:  So firstly making sure the employee gets the right treatment or first aid, so obviously responding to the incident on site.  Now as Kerri mentioned the employee must report the injury to the employer but the employer also has some obligations in terms of reporting the injury on to their workers compensation insurer and they must do that within 48 hours of being notified.  If they do not report the injury within five calendar days the employer may actually be forced to pay a claim’s excess payment, which is equivalent to one weeks’ worth of weekly payments of compensation.  So the employer can be penalized if they are not actually notifying their insurer that an incident occurred.  There is also what we call a notifiable incident.  Now these are incidents whereby there is a death or a serious injury or illness or a dangerous incident.  In those circumstances the employer has an additional obligation, in that they must notify SafeWork NSW or what has been known as WorkCover NSW over the years.

Jess:  So once everyone has notified what happens then?

Kerri:  So the worker should then obtain appropriate treatment and they should be guided by their general practitioner in that regard, which is referred to as their nominating treating doctor.  They may be sent off scans for investigations or referred to a specialist or have treatment such as physiotherapy and other things like that depending on the nature of the injury.  The worker must also obtain from their treating doctor a Certificate of Capacity and make sure that this remains current.  They need to provide a copy of that to both their employer as well as to the insurance company and the certificate of capacity is issued and valid for 28 days.  It sets out the capacity of the worker so that what hours they can perform, what duties they can work, or it may out set out that they are totally unfit, not actually able to work at this time.  So the worker should talk to their employer about what they can do at work and start planning for their recovery at work as early as possible.

Jess:  So how should the employer be supporting their injured employee during these initial stages of all of this.

Gemma:  Look Jess, it is a good idea if the employer can try to be understanding of the workers circumstances.

Jess:  Which certainly help a lot.

Gemma:  Yes - if they can offer some degree of understanding about the situation and offer support, both at the time of injury and throughout the recovery process.  So discourage blame and those sorts of things and they could even ask appropriate co-workers to stay in touch and just make the worker feel supported.  Now the employer can also make contact with the treating doctor and the authority for this to take place is actually on the Certificate of Capacity which Kerri referred to and in signing that the injured worker allow for, or gives authority for, their employer to contact their treating doctor and sometimes this can assist if the employer needs to clarify any aspect of what the worker’s capacity is or when the employer is trying to look at what duties might be available and return to work aspects.  So, you know if they can be proactive about that, that can sometimes assist the worker also.

Jess:  Definitely and when the worker is ready to go back to work what happens?

Kerri:  So the capacity of the injured worker will be set out in the Certificate of Capacity that we referred to before that is issued by the nominated treating doctor and when it is time to return to work the employer and the insurer would likely develop a plan for the workers injury management and recovery and there are obligations on each parties in respect of that plan.  So the worker must participate in the plan.  It is also helpful for the worker to keep some key things in mind.  So to help identify alternate duties if they cannot perform their normal duties.  So generally it is the worker that knows their job best, so if they can help their employer and essentially both the employer, the insurer, and the injured worker can work together then we often see that the results in the return to work are better.  Also to look at programs often available to support the worker’s recovery at work and employees can ask their support team if they have any questions for example, their doctor or supervisor at work.

Jess:  So that was the employee looking at the employer’s responsibility when the worker does return to work?

Gemma:  Definitely so, under the Workplace Injury Management and Workers Compensation Act of 1998, this is the relevant legislation.  It actually requires that the employer provide employment that is both suitable and as far as reasonably practical, the same as or equivalent to the employment the worker was in it at the time of the injury.  So there is always going to be that goal of returning the worker to the same job as at the time of injury and that should be the priority.  Look sometimes however given the nature of the injury that may not happen.  So there is some other options that can be offered in terms of light duties or modified duties.  So it could be the same job with different hours, it could be modified duties, it could be a different job altogether or perhaps a different job at a different work place or a combination of those sorts of options.  Now an employer could also look at conducting a workplace assessment and this is often done in conjunction with the insurer where they have a rehab provider come to the workplace and help the injured worker look at what they can and cannot do, or they might look at arranging a work trial.  So a certain period of time where there are some duties to see whether the worker can perform them or not.  So there is a range of options but certainly the obligation is for the employer to accommodate an injured worker’s return to work.

Jess:  So what happens in circumstances that the employer cannot provide any sort of work duties for their employee who is coming back to work?

Kerri:  So if an employer feels that they cannot meet their legal obligations to provide suitable duties they will need to show why.  So it is not enough to just say no, you are not coming back; an employer needs to show who they consulted with before making that decision such as the worker, supervisor, rehab provider and show that they carried out an adequate assessment of the suitable or pre-injury duty work options and they also need to identify factors that the employer considers is restricting the ability to provide that suitable employment in accordance with what the worker has got an ability to do.  So a lack of available duties does not remove the obligation for an employer to participate in the recovery, I mean in terms of their work planning process.  And it is also important to note that an employer cannot terminate the employment of an injured worker within six months from the date of injury unless the worker is in a period of accident pay in which case they cannot be terminated until the end of the accident pay period.

Jess:  Kerri Shaw and Gemma Bunner are the principal partners at Shaw and Bunner Legal specialising in personal injury and servicing the entire Hunter Valley for professional advice on things like workers compensation and for a free initial no obligation consultation contact them today on 02 4046 1805 or visit their office in Branxton.  You can also search Shaw and Bunner Legal on Facebook and Instagram.