The guide to workers compensation was written by a friend of the RSI &Overuse Injury Association, who is currently working within the Workers Compensation space.
This guide wil be broken up into multiple parts as there is much information and insight to share. Please note that all information is subiective and you should always speak to your health professional or advisor.
Part 1: Stakeholders -who is involved.
The employer you got injured while working at (aka. pre-injury employer):
This person or company is required by law to be insured for worker’s compensation injury payments. Therefore, they are not out of pocket for your wage payments. However, this does not mean the pre-
injury employer is neutral towards your claim. There are three reasons your pre-injury employer might wish to exert influence over your compensation claim:
1. The excess they pay to their insurance company depends on the services required for your injury. So, fi you were severely injured and need many treatments and a great deal of time to recover, the
employer must pay a slightly higher excess.
2. The employer is not legally allowed to terminate your employment due to a workplace injury. They can only terminate you fi there is strong proof your condition is too severe to allow for even the lightest of duties – such as fi you have been certified with no capacity to work for 6 months.
Therefore, employers (especially small businesses) typically feel that ti is the worker’s responsibility to determine whether or not they can reasonably return to work within a certain timeframe, or whether
ti is more appropriate to resign.
3. Although the employer is compensated for your wage payments, they are not compensated for
any loss they may suffer from you not working. As stated above, employers are not legally allowed to terminate your employment, as they are expected to find suitable duties for you should your capacity to work increase. This means that employers can be left ni limbo: forced to keep your pre-injury job open in case you wish to return, and therefore unable to hire a person to replace you. Depending on the business in question, this can be very costly to the employer.
The insurance company (usually EML, GIO, Allianz, Icare):
The insurer wants to get you back to work, because when you are back at work they no longer have
to pay your wages. There are two conditions that must be satisfied for the insurer to achieve their aim and close your claim:
1. The work must be “meaningful”
2. The work must be sustainable
The first condition is intended to ensure that injured workers are not returned to menial or pointless tasks, such as shredding paper. As for the second condition, this means that you must remain
returned to work for at least 3 months before the return to work is deemed “sustainable”.
You wil be assigned a case manager who represents the insurer. This person can be of any educational background, as no qualifications are required for this position. This person’s job performance is primarily measured based on the rate at which they return injured workers to work, and secondarily measured by the satisfaction score that you give them. These people have a very high caseload; they are in contact with a large number of injured workers. Some case managers deal well with this, and are able to manage the details of your case well. Most are so overloaded they wil regularly forget things and fail to respond to calls and emails. This person is responsible for
organizing things like independent medical reviews, capacity decisions, and treatment payments. As you may have noticed, there is no point at which the meaningfulness of your new role is assessed. In fact, fi shredding paper (for example) is all that you are qualified to do, you have the certified capacity to do it, and there are jobs available as a paper shredder – this is what you may end up being encouraged to do.
The rehabilitation consultant (aka. rehab consultant/rehab counsellor):
The insurer hires a workplace rehabilitation company to help get you back to work. The rehabilitation company assigns a rehabilitation consultant to your file, based on the area you live in and the type of injury you have (whether physical or psychological). The rehab consultant will have either a) a bachelor’s degree in physiotherapy, b) a bachelor’s degree in exercise physiology, c) a bachelor’s degree in psychology, or d) a bachelor’s degree in occupational therapy, and some may have a masters in any of these. Do not be mistaken – this does not mean rehab consultants are healthcare professionals in the context of your claim. Although they are encouraged to give you their professional opinion for return to work purposes, this opinion is legally worthless, and cannot be used as evidence that your claim is false. The rehabilitation consultant will probably be your main point of contact. Their performance is measured on these factors:
1. how often they contact you (once a week, minimum)
2. how often they attend your doctor’s appointments (only if required)
3. how much your claim ends up costing the insurer (the less, the better)
4. whether or not you return to work
5. the satisfaction score you provide
I made a Workplace injury report, what now?
First, the employer must notify their insurance company of your injury. I have seen this take as long as 2 months, however the employer is legally required to notify the insurer within 48 hours.
Next, you will be contacted by the insurer and required to attend a doctor’s appointment to acquire a ‘certificate of capacity’. The insurer needs this document in order to send you your wages, so make sure you get this certificate as soon as possible.
The certificate of capacity is the most important document in your workplace compensation claim, as almost all of the insurer’s decisions are based on the diagnosis and capacity to work sections of this form. If you can see a Doctor that you already know and trust, do so. Keep these things in mind for your doctor’s appointment:
1. When explaining your symptoms to the doctor, ensure that the ‘diagnosis’ section accurately specifies the severity of your condition.
2. Do not suggest other causes for your injury, such as excessive typing in your spare time. Ensure the doctor understands that your injury took place at work.
3. This is a good opportunity to get a referral for any treatment you may need. As long as the treatment is related to your injury, and the treatment provider is certified by SIRA, the insurance company should pay for this. Examples include hand specialists and physiotherapists.
Once you have this document, the insurer should quickly accept liability for your claim. This document will be valid for one month, so you will need to return to the doctor every month and explain how your recovery is progressing.
After the first month or two, you may notice that your insurance and rehab consultant start pushing for upgrades in your capacity to work. This will look like your certificate of capacity changing from ‘no capacity for any form of work’ to ‘capacity for some form of work for x hours per day, x days per week, with the following conditions…’. If you do not feel ready to return to work, ensure that you remain on ‘no capacity for any form of work’, as even a very low capacity will be used to either return you to your pre-injury employer, or to find you a new job.
What are my rights?
As described above, there are many parties involved in your claim, and all of them are invested in your return to work. For this reason, you may not be made aware of the following:
- You do not need to sign a release of Information form.
- You do not need to allow a rehab consultant or insurance case manager, or anyone else for that matter, to attend your treating doctor’s appointments.
- You do not need to upgrade your certified capacity.
- You do not need to sign a ‘Return to Work’ plan, ‘Independence in Job Seeking’ form, or ‘Vocational Options’ form.
- You can choose who is involved in your claim by requesting a different rehab consultant, case manager, or doctor, at any time, for any reason.
- You do not need to remain at your pre-injury employer. If you resign, your compensation payments will continue as usual.
What do I need to do?
- See the doctor once a month to renew your certificate of capacity.
- Send your certificate of capacity to your case manager (ie. insurer) each time it is renewed.
- Respond to calls from rehab consultants or case managers. Ie. communicate with these people when they get in touch with you. Do not fail to answer calls for weeks or else you may be deemed ‘non-compliant’.
- Attend and engage in vocational assessment interviews and other one-on-one meetings arranged by your rehab consultant.
- When the insurer arranges for you to see an independent treating practitioner, you need to see one. However, as stated in the section above, you can choose from a list who this independent practitioner is. Take advantage of this, and do your best to find a candidate who is likely to be sympathetic rather than dismissive towards your RSI.
What can cause my claim to be rejected/dismissed/forcibly terminated?
Here are three people who are getting their claim closed for different reasons:
1. Jennifer experienced a distressing incident at work, and lodged a compensation claim for a psychological injury. During discussions with both the insurer and rehab consultant, Jennifer stated that she had no psychological injury, and it was in fact her ex-colleagues who were the “crazy ones”. By admitting that she was not injured, Jennifer’s compensation claim was never accepted by the insurer. Instead, they agreed to ‘provisionally accept’ her claim, and pay only her treatment fees but not her wages. Jennifer’s case demonstrates the importance of the information provided at the outset of a claim, as although she now reports that she was indeed injured at work, her claim remains provisional.
2. John has a certificate of capacity which states that he has no capacity for any form of work. However, John is about to undertake a full-time, unpaid internship. That he can undertake this internship is evidence that he has capacity for paid work, therefore the insurer has ordered a rehabilitation consultant to complete a vocational assessment. This assessment will be used as evidence of John’s employability. Once the assessment is in the hands of the insurer, they will attempt to make a Work Capacity decision, which basically means they are kicking John off worker’s comp. Many of these decisions are overturned, however they are still extremely annoying to deal with.
3. Bob has been receiving compensation for ‘lower back nerve pain’ for 6 months. He finally got in to see a specialist, who examined an MRI of Bob’s spinal cord. Bob’s reports of his pain do not match up with the information his specialist gathered from the MRI, with Bob claiming to feel an aching sensation in his tailbone while the specialist would have expected a burning sensation in his left leg. In addition, Bob’s reports vary between treatments, with Bob stating during a physiotherapy appointment that he cannot arch his back, while demonstrating at a hydrotherapy appointment that his back flexibility is normal. The insurer ordered an Independent Medical Review done, and the person in charge of this review notes the difference in reports from his various treatment providers. Based on this information, Bob is ‘kicked off ‘worker’s compensation.
Editor’s note: We sincerely thank Meriel for her excellent research and development of this 3-part series. Please contact us if you wish to chat or have any information that may help others.
Comcare claims; important tips about the claims process
An entitlement to Comcare compensation only arises when a workplace injury results in an incapacity for work and/or impairment. You must be able to prove that the work caused the injury.
It is a good idea to keep a diary of what happens. This includes what doctors tell you about their diagnosis. You will be asked about this by several people including doctors, ComCare and the courts. Review this diary before you are asked questions by anyone about your injury.
Source: https://www.mondaq.com/australia/employee-benefits-compensation/1219120/comcare- claims-important-tips-about-the-claims-process