By Pania Watt
The NSW workers compensation scheme is complicated, particularly if you fall within the class of workers affected by the 2012 amendments to the Workers Compensation Act 1987. If you’re not sure whether this is you or not, you will be in that class if you are not a Paramedic, a Firefighter or a Police Officer. If you are one of these types of workers, you are exempt from the amendments. See our other blog posts on what exempt workers can expect from the scheme.
If you are a worker affected by the amendments, it’s very important that you pay careful attention to the management of your claim while you are returning to work.
Hot tip # 1 – Your Nominated Treating Doctor is very important
I can’t emphasise enough how vital it is to have a trusting relationship with your doctor. He or she is the “gateway” to your path to recovery. You must be able to speak openly, and honestly with your doctor about the issues you are facing during your return to work, because your doctor will be completing your Certificate of Capacity for the insurer.
If you have suffered a psychiatric injury, you may wish to consider asking your treating Psychiatrist to be your Nominated Treating Doctor, rather than your General Practitioner. Psychiatric injuries are very specific and can be complicated, so in those circumstances the assessment of treatment required and capacity for work may best be completed by your treating Psychiatrist.
Hot tip # 2 – The Certificate of Capacity must be completed carefully
The Certificate of Capacity is a very important document. Not only does it confirm your doctor’s view that your injury is work related, it tells the insurer what treatment is required, and most importantly, it tells the insurer what your capacity for work is.
Even if you are fit for full-time work, the certificate still tells the insurer what treatment you need, and any restrictions which apply to your capacity for work.
If you think your doctor may not understand the requirements of your specific job, I recommend that you obtain a Job Description from your employer. If you don’t have one, write down all of your duties at work, and give it to your doctor. He or she will appreciate understanding what you will be required to do when you return to work, and in particular, have an understanding of what “Pre Injury Duties” means. More on this below.
Hot tip #3 – Pre Injury Duties means no restrictions whatsoever – nothing, nada, zero
At some point during your claim, you may reach full pre-injury hours, but still need to observe some restrictions in relation to your injury. At this stage, your doctor may suggest to you that you are now fit for “Pre Injury Duties” and want to tick that box on your Certificate of Capacity.
It is important that you understand what being “being fit for Pre Injury Duties” means.
It means that you can return to your pre-injury job, with no restrictions whatsoever, now and in the future.
How this could go is illustrated in the below examples.
Andy is a labourer who sustains an injury to his right shoulder. Following surgery and physiotherapy, his right shoulder has stabilised and he is able to return to work as a labourer, but he will never be able to work more than 20 hours per week or lift more than 10 kilograms using his right arm. His doctor says this restriction will be permanent, and provides him with a certificate certifying that he is permanently fit for 4 hours per day, 5 days per week, with a permanent restriction to not lift any weight of more than 10 kilograms using his right arm. Andy continues to receive benefits from the workers compensation insurer on the basis of that certificate, which support him and allow him to continue working in a job that he enjoys, despite his injury.
Rachael is a process worker who sustains an injury to her lower back. She undergoes surgery and has a very good result following rehabilitation, and she is keen to get back to work at the meatworks. Her doctor provides her with a certificate certifying her fit for pre-injury duties. When Rachael submits the certificate to the insurer, she is told that because she is fit for pre-injury duties, she has no incapacity for work, and therefore no entitlement to weekly benefits. Her payments are therefore ceased, even though she has not yet attempted a return to work and is not sure whether she will be able to manage working on the line for even half of her pre-injury hours.
Let me be clear – getting back to work is an important stepping stone in your recovery from a work related injury. Don’t let it be derailed by not understanding the meaning of “Pre Injury Duties” and how that might affect your claim.
Hot tip #4 – DO NOT let your Certificate of Capacity lapse
I can’t emphasise this enough.
A Certificate of Capacity is usually only able to be provided for a maximum of 28 days. The only exception to this is if you have a long term, chronic injury and the insurer has agreed that your doctor can provide a certificate at longer intervals of up to 3, 6 or even 12 months.
An important part of the Certificate of Capacity is that it tells the insurer what your capacity for work is for the period it covers, and the insurer will pay your weekly benefit accordingly. If you don’t provide a Certificate of Capacity, the insurer will not pay you. If you provide a certificate late, or back dated, you may find yourself in a complicated argument with the insurer over whether you can be paid your benefit for a disputed period.
Avoid all of this drama. When you are leaving your doctor’s surgery after obtaining your certificate, stop at the receptionist’s desk and book your next appointment for the day before your certificate expires. Send your certificate straight to the insurer. By email is best, so that you have a record of it being sent, and you have a copy in your email account in case of any dispute.
Hot tip #5 – The rehabilitation adviser does not have the right to attend all of your treatment appointments
I frequently hear from my clients that the rehabilitation adviser appointed to manage their claim has been attending all of my client’s appointments with their doctors. I have been told by clients of rehabilitation advisers arguing with doctors, including treating surgeons, about their recommendations for treatment, or assessment of capacity for work, arranging treatment appointments for my client, changing my client’s appointment dates and times with their treating doctors to suit the adviser, and during those appointments aggressively insisting upon changes to my clients’ certificate of capacity.
This is, frankly, outrageous behaviour. Your consultations with your treating doctors are private. Sometimes, depending on the type of injury you have sustained, you may need to remove your clothing for examination. Sometimes, you might want to discuss matters in a full, and frank manner, one on one with your doctor. That is your right.
A rehabilitation adviser is only entitled to attend appointments which are case conferences. These are conferences which you, your doctor/s, the rehabilitation adviser, and the insurer attend, on a regular basis, to discuss your claim. Nothing else. If you want the rehabilitation adviser to attend other appointments with you, you are welcome to allow them to do so. If you don’t want to, all you need to do is say so.
Navigating your workers compensation rights and entitlements is difficult. If you’re in need of answers, direction and support with your workers compensation claim, contact us now on 1300 15 15 45 to discuss your specific circumstances.
The information in this blog is not intended to be legal advice, and should not be taken as such.
All initial consults with our firm are free of charge and all of our services are No Win, No Pay, with the exception of NSW workers compensation claims, which are funded by WIRO and therefore free to all non-exempt workers covered by the NSW workers compensation scheme.
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