When a worker is injured: A workers compensation guide for employers

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Introduction

This guide is to help you understand what to do and what to expect when your worker is injured.

It outlines your obligations under workers compensation legislation, and provides practical advice to help get the best possible outcome for your worker and you. It also explains the roles of the people in your worker's support team, including you, the insurer, approved workplace rehabilitation providers, doctors and allied health providers.

Most injured workers take little or no time off work. For those that do, the vast majority
(more than 80 per cent) return to and recover at work within the first 13 weeks.

Advice and direction in this guide is based on a strong body of research and evidence about the health benefits of work. It explains how returning to and where possible, recovering at work after an injury can promote healing and facilitate recovery.

The guide will help you identify suitable work options to support your worker to recover at work. It outlines actions you can take, including support programs, if the worker is not recovering as expected.

Please note, this guide does not cover injury prevention. For information on your work, health and safety obligations, visit the SafeWork NSW website.

Workers compensation in NSW

The State Insurance Regulatory Authority (SIRA) is the government organisation responsible for regulating the NSW workers compensation system. SIRA assumed the insurance regulatory functions of WorkCover on 1 September 2015. SafeWork NSW is the regulator for workplace health and safety in NSW.

There are three types of insurers in the NSW workers compensation system:

Regardless of which type of insurer is involved, they all have an obligation to support employers and their workers during the recovery process and manage the claim to ensure entitlements are received.

Your obligations

Under NSW workers compensation legislation every employer is required to:

• have workers compensation insurance¹
• display a summary of the act that details how a worker notifies an injury and how they may make a claim. The If you get injured at work poster can help meet this obligation
• notify workers of your documented return to work program describing the steps you will take if a worker is injured
• maintain a record of work-related injuries
• notify your insurer of all workplace injuries within 48 hours
• participate in the development of the worker's injury management plan, written by your insurer, and comply with your obligations within it
• provide suitable work (as far as reasonably practicable) when a worker is able to return to work, either on a full-time or part-time basis²
• provide suitable work that is (as far as reasonably practicable) the same as or equivalent to the work being performed at the time of the injury².

Section 248 of the Workers Compensation Act 1987 states:

An employer must not dismiss a worker because of a work-related injury within six months from when the worker first became unfit as a result of the injury.

The evidence for recovering at work

Research shows that:

• for most people with a work-related injury, time off work is not medically necessary
• an unnecessary delay in returning to work is often associated with delayed recovery - the longer a worker is away from work, the less chance they have of ever returning
• staying active after injury reduces pain symptoms and helps workers return to their usual activities at home and at work sooner
• working helps workers stay active which is an important part of their treatment and rehabilitation.

The benefits to your business

Helping your worker to recover at work may reduce the financial impact on your business. It also helps you:

• maintain the skills and knowledge of an experienced worker
• reduce the cost of training a replacement worker
• maintain good employer-employee relationships
• demonstrate to all workers, that they are valued employees
• reduce the length of time your employees are away from work
• avoid the cost of hiring new staff.

The following four steps explain the workers compensation process and your role as the employer.

Step 1. Responding to an incident

If a worker receives a work-related injury there are specific obligations you as an employer are required to fulfil.

Providing first aid

If your worker becomes injured or ill at work, provide immediate first aid (where appropriate) and seek medical treatment (if required).

Reporting the injury

Your worker must notify you as soon as possible after an injury. A description of the injury is to be entered in your register of injuries.

Report the injury to your insurer within 48 hours of being notified. Your worker, you or your representative can make the initial notification to the insurer electronically, in writing or by telephone.

If you do not report the injury within five calendar days, you may pay a ‘claims excess payment’ which is equivalent to one week of the worker’s weekly compensation payments.

Once reported, the insurer will provide you with a reference number. Make a note of it as you may need to track the notification in the future.

A notifiable incident

If the injury or illness was the result of a ‘notifiable incident’ you must notify SafeWork NSW on 13 10 50 immediately.

A notifiable incident is a:

• death
• serious injury or illness
• dangerous incident.

Additional information about notifiable incidents is available in our What to do first section or learn more about the penalties for noncompliance here.

Step 2. Supporting your worker

Understanding your worker's situation and offering support at the time of injury and throughout the recovery process will have a positive impact on your worker's response to their injury and enable successful recovery at work.

You or your worker's manager can provide a supportive and positive environment in the following ways:

Early contact with the doctor

A worker who is away for more than seven consecutive days as a result of a work related injury or illness, must choose their preferred doctor (also referred to as the nominated treating doctor). Even if you have a preferred doctor or a medical practice located nearby, encourage your worker to make their own decision about where they wish to receive their treatment. Most workers choose their family doctor.

Early contact with the doctor demonstrates your commitment to your worker's recovery. It also gives you an opportunity to discuss your worker’s normal duties and the availability of other duties.

If you are unable to speak immediately with the doctor, ask the receptionist for the best way and time to do this. Leave your details and make sure you are easily contactable.

Consider sending an email or fax to the doctor with information about the nature of your business, availability of duties and your contact details.

NSW workers compensation certificate of capacity

The certificate of capacity is the main way in which the doctor communicates with the worker's support team. It is a standard form that a doctor must complete. It replaces the former medical certificate.

The recommendations contained in the certificate will help your worker recover at work sooner. You are entitled to ask questions of the doctor and clarify the information in the certificate.

Questions you may ask include:

• what can the worker do?
• how long do you expect the worker to take to return to their normal duties?
• can the worker drive or use public transport?
• what can I do to help the worker recover at work?
• how can I best communicate with you about the worker’s progress?

Seeking your worker’s permission

When your worker signs the certificate of capacity they authorise the doctor to provide relevant information about their injury or illness to you and the insurer.

If you want to contact the doctor before receiving your copy of the certificate (such as during the worker’s first consultation) to show your support and discuss suitable work, you will need permission from your worker first.

Arranging a case conference

A case conference is a meeting that can include the nominated treating doctor, insurer, workplace rehabilitation provider (where applicable), the worker and you, their employer. They are separate to your worker's scheduled medical review and can occur any time throughout the claim.

Case conferences can be used to set goals, ensure roles and responsibilities are understood, and agree on timeframes to recover at/return to work.

Meeting with your worker and their doctor can assist in the overall management of your worker's injury. You should encourage your worker to participate in these case conferences.

Other people involved

Your worker's safe and timely recovery at/return to work is a team effort involving open, regular and caring communication. That's why they have a support team.

The team includes the insurer case manager, doctor, a workplace rehabilitation provider (if required) and you. Each member has an important role to play in your worker's recovery. These are outlined below.

Step 3. Identifying duties

Under the Workplace Injury Management and Workers Compensation Act 1998 you are required to provide employment that is both suitable and, as far as reasonably practicable, the same as or equivalent to the employment the worker was in at the time of the injury³.

If you cannot provide or identify suitable work, your insurer can help you with other options.

Setting your worker’s recover at work goal

Recover at work simply means helping a worker remain in the workplace in some way, so they can use work to build and improve their capacity following an injury.

When identifying suitable work options for your worker, the goal of returning your worker to the same job as at the time of injury is preferable. Sometimes, due to the nature of the injury or other circumstances this is not possible. In these situations, the goal reflecting the most direct path back to work is recommended.

When you set this goal, take into consideration the doctor’s estimation of your worker’s capacity for work. You can find this information in the NSW workers compensation certificate of capacity.

Identifying suitable work options

To identify suitable work options you may:

• familiarise yourself with your worker’s pre-injury role
• discuss work options and available duties with your worker
• speak to your worker’s supervisor or immediate manager and ask for suggestions about how to organise duties to fit current work routines and schedules
• review all the jobs your business has available and look at how they may align with your worker’s skill set
• review the capacity of your worker as described on their certificate of capacity
• provide work that has been ‘put on the back burner’ or any good ideas you haven’t had time to implement
• determine who else needs to be involved.

Consider the tasks closest to your worker’s pre-injury duties as your first option.

Duties can be offered in any of the following ways:

• the same job with different hours
• modified duties
• a different job altogether
• at the same or different workplace
• a combination of these options.

When identifying suitable work options keep the following points in mind:

Modifying the workplace

Consider aspects of the job your worker can perform within their current capacity and explore whether they may be able to perform some or all of their normal duties with assistance.

This could include the use of equipment or modifications to the work environment. For example providing a chair to a worker with an ankle injury, who would normally stand, will enable your worker to take a break from standing for long periods while still performing their usual job.

Funding for equipment and/or workplace modifications is provided where it is necessary to allow the worker to recover at work, or to accept an offer of suitable employment. The equipment or workplace modification may be specific to your worker’s functional requirements or necessary to start a new work role. The cost of the equipment and/or workplace modification is funded by SIRA and is not considered a claims cost.

There is no minimum or maximum set payment however the worker must meet the eligibility criteria and the application must meet the principles described in the SIRA equipment and workplace modifications program guidance material.

Assistance identifying suitable work options: workplace assessment

If you are having difficulties identifying duties in your workplace to accommodate your worker’s current capacity, a workplace assessment can be arranged by your insurer.

A workplace assessment involves an approved workplace rehabilitation provider assessing your worker as they perform a range of duties and determining their capacity to perform the duties safely.

The workplace assessment findings are discussed with you, the doctor and the worker to help you develop an appropriate recover at work plan.

You should speak with your insurer if you think you require a workplace assessment.

Overcoming a lack of available duties: work trial

If you are unable to identify suitable work options that match your worker’s current capacity, a work trial can help overcome the problem.

A work trial places a worker with a host employer for a short period of time when the pre-injury employer is unable to accommodate their current capacity.

The work trial is an opportunity for your worker to recover at work while performing duties suited to their current capacity. Duties can be upgraded over a period of time (no longer than 12 weeks) until the worker reaches the required capacity to return to your business.

An approved workplace rehabilitation provider will help you to source a work trial host and submit a proposal.

Work trials are funded by SIRA and are not a claims cost. For additional information see our work trial guidance material.

There are financial incentives and support programs to help you help your worker to recover at work.

Demonstrating a lack of available duties

If you believe you cannot meet your legal obligations to provide suitable employment, you will need to show why. At a minimum, you should be able to:

• show who you consulted with (such as your worker, supervisor, other workplace manager, approved rehabilitation provider)
• show that you carried out an adequate assessment of suitable or pre-injury work options
• identify factors you believe are restricting your ability to provide suitable or pre-injury employment
• identify assistance you have sought, for example, from your insurer and/or an approved workplace rehabilitation provider.

A lack of available duties does not remove your obligation to actively participate in the recover at work planning process. It is important for the worker to stay active and, therefore, critical that alternate work options or strategies are identified.

Ways to influence recovery at work

For most people with a work-related injury, time off work is not medically necessary. In many cases, with minor and temporary job modifications, your worker can recover at work. Consider the following factors that can influence a worker’s recovery at work:

Step 4: Developing your worker's plan

Tailored planning is essential to a successful work outcome for both you and your worker.

Developing the plan

Recover at work involves adjusting your worker’s duties to match their capacity for work. It can be a gradual process where your worker returns to modified duties or reduced hours to accommodate their injury.

Your worker’s recover at work plan should focus on what your worker can do rather than what they cannot. As the employer, your role in the support team is to identify suitable tasks and duties, while the doctor’s role is to identify your worker’s physical capabilities.

When developing a recover at work plan ensure you:

• give your worker the opportunity to participate in its development
• describe the plan in writing (download the recover at work planning tool to help you do this)
• talk to your worker about who will receive a copy of the plan and what injury management information should be shared with co-workers
• provide copies of the plan to the worker and the doctor
• provide the worker with written documentation of any changes made to the plan.

It is good practice to:

• keep a copy of the plan for yourself and give copies to the worker’s line manager and your insurer
• inform line managers and co-workers (if required) of the plan’s content
• monitor your worker’s progress against the plan
• update the plan when the worker’s medical restrictions change or if there is a change in the workplace that impacts the plan.

What to include in the plan

A template is available on our website or you can develop your own. The plan should include the following information:

Preparing colleagues for your worker’s return

Feeling nervous or worried about returning to work is normal for a worker who has been off work for a period of time. Appropriate encouragement and support for your worker when they are returning and/or recovering at work is important. It is also important to make sure all staff dealing with your worker:

• know the date their colleague is coming back to work
• have a copy of the recover at work plan (where appropriate)
• are aware of their important role in supporting the worker through the process.

Monitoring and upgrading the plan

As your worker recovers, their capacity for duties at work will increase. You can gradually upgrade the plan by:

• increasing the hours of work
• reducing the number or length of rest breaks
• reducing assistance to the worker to complete tasks
• requiring the worker to perform more work in the same time period (increasing the work pace)
• introducing new duties that allow increased physical or functional demand.

Glossary

Further information

More information about workers compensation is available on our website.

For all enquiries about workers compensation claims, workers compensation insurance and work health and safety matters, you can phone us on 13 10 50.

If you have any issues about your worker's claim:

• Contact your insurer first. They will be with your worker's circumstances and trained to take action and/or escalate your concerns.
• If you have raised an issue with the insurer and are dissatisfied with the outcome or decision, you can contact our Customer Service Centre on 13 10 50.
• If further action is required and we are unable to assist, we will explain your options. Depending on the nature of your concern or complaint you may seek assistance from:
  • Personal Injury Commission
  • NSW Ombudsman

Footnotes

1. Penalties apply if an employer does not take out workers compensation insurance.
2. Penalties may apply if you fail to do this.
3. Penalties apply if you do not comply with this obligation.