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Everyday news carries stories of interest rate hikes, cost-of-living pressures and so on. So, when someone is injured and is pursuing a personal injury claim, when can they return to work to ensure they can continue to provide for themselves and their families?
Importance of return to work
Returning to work at the right time after an injury is really important for personal mental and physical health and wellbeing, not just financial security. There are many benefits of work, which medical practitioners and allied health practitioners know full well.
Returning to work after an injury also takes on a particular importance when someone has a personal injury compensation claim. The law requires an injured person to “mitigate their losses”. This is a fancy way to say that if medically cleared or supported to return to work, then it is incumbent on the injured person to try a return to work. It is not a blanket do everything to return to work even if there is a risk of re-injury or if the employer is simply ignoring any suitable duties program or medical restriction. Mitigating one’s losses is simply, if medically supported, try, and if it isn’t working out, speak up to the doctor, employer and WorkCover (if involved in a workers’ compensation claim).
Mitigating losses becomes important because insurers will often argue that a person has failed to return to work or make an effort to return to work after an injury and that, therefore, the injured person’s compensation should be reduced.
Workers’ compensation claims
During a workers’ compensation claim, WorkCover Queensland (or the insurer, if the employer is self-insured) has an obligation under law to assist with a return to work.
The employer also has an obligation under law to cooperate with the insurer and the injured worker to assist with a return to work. However, it is the insurer, not the employer, that is in charge of and ought to manage the return-to-work process. Importantly, any return-to-work program must be guided by the injured person’s doctor.
Motor vehicle accidents/Compulsory third party
In a CTP claim, the insurer does have an obligation to fund reasonable and appropriate rehabilitation. This can include vocational rehabilitation or equipment to make a return to work possible. It can include using specialist support from an occupational therapist to help with workplace reviews, modifications, or even assistance with finding alternative career pathways.
Unlike in workers’ compensation claims, in CTP claims, there is no specific obligation on an employer to cooperate with the CTP insurer and injured person to assist with a return to work. That is unless the motor vehicle accident happens on a trip between home and work or alternatively between workplaces/worksites/client residences (called “journey claims”, and it is best to get legal advice about how this operates).
Public liability claims
Unfortunately, in public liability claims, the respondent or insurer is not required to fund any rehabilitation or return-to-work assistance. In such instances, getting legal advice early about alternative options is important, as there may be:
- Workers’ compensation entitlements;
- Income protection;
- Total and permanent disability;
- Total and temporary disability.
Other possible avenues of support
There are also other schemes now that could assist people suffering injuries with return-to-work support. This includes the National Disability Insurance Scheme or the National Injury Insurance Scheme. Both these schemes are complex, and accessing them can be not only difficult but can also impact other legal entitlements mentioned above. Therefore, it is best to seek legal advice about how this operates.
Returning to work has great benefits for the injured person, their family, employers, our community, and our economy. There are supports out there, and there are laws in some areas that oblige insurers or employers to assist with a return to work. Unfortunately, while this sounds great, often, the practical reality is a misunderstanding or a combative approach just because someone has a personal injury claim. It need not be like this.
By Greg Spinda, special counsel, Travis Schultz & Partners
