Workers can often claim more than just Workers’ Compensation payments. Depending upon the severity of a worker’s injury, and the circumstances of that injury, a worker may be able to claim “Common Law” damages from their employer. The word “damages” is just a legal word meaning “compensation”

Without going into great detail, a Common Law damages claim is usually bigger and better than a Workers Comp claim. But it is also a tougher claim to prove, with a number of hoops to jump through. One of those hoops is the “Termination Day”.

Here is how the Termination Day is defined in the Workers’ Comp Act:

93M. Termination day defined

(1) If a claim for compensation by way of weekly payments has been made wholly or partially with respect to an injury, the termination day for an election to retain the right to seek damages in respect of that injury is the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by subsection (3) or under subsection (4).

Not very clear is it? This is the advice that WorkCover gives to workers on its Website concerning the Termination Day:

The termination day is the date at which you cease to be eligible to pursue common law damages. The termination day generally falls one year from the date your claim for weekly payments of compensation was made on your employer, however there are some exceptions. For more information contact Advice and Assistance on 1300 794 744.

As can be seen, WorkCover doesn’t say too much about the ins and outs of the Termination Day, and this is for the simple reason that the law is very complicated. Problems can occur determining when the Termination Day runs from, when it expires, the steps a worker has to take prior to the Termination Day to have impairment assessed, whether the Workers comp insurer has given proper notice of the Termination Day, and whether, and in what circumstances, the Termination Day can be extended.

The issue is a legal minefield. The best thing to do is seek advice, which is what WorkCover recommends. If you want advice on the Termination Day from a lawyer with more than 25 years’ experience with Workers Compensation claims, phone our Free Helpline on (08) 9244 2666.

In summary, there is no hard evidence to support the proposition that “work” is therapeutic. Additionally, there is no scientific reason why work should be therapeutic. This shouldn’t be at all surprizing, considering the vast array of activities that can constitute work, and the many diseases and ailments that can be visited on workers.

“Work” can encompass everything from vigorous and inherently dangerous exertion, to purely sedentary activities. Contrast the work of an offshore drilling rig roughneck with a microbiologist, the latter peering into a microscope all day, hardly lifting nothing heavier than a glass slide. Consider the two completely different workplaces, and hours of work, and the different personal qualities, physical and mental, required of each job.

Consider then all of the physical and mental diseases that can befall one. Cancer and heart attack at one extreme, and a bad cold at the other. Is it any wonder that there is no statistical data or even reasoning to support the claimed health benefits of work? If work was “generally” therapeutic, it would be recommended in all cases, and not reserved for people on workers compensation payments.
But hold on, there’s more. WorkCover limits its claims about work to “good work”:

Good work is beneficial to health and therapeutic to recovery.

So what is this good work? What is bad work? How to tell the difference? Waddell’s paper is the source of the concept of good work:

Firstly, work is generally good for your health and well-being, provided you have ‘a good job’. Good jobs are obviously better than bad jobs, but bad jobs might be either less beneficial or even harmful. It is then important to consider what constitutes a good job. […] The evidence reviewed here suggests that, in terms of promoting health and well-being, the characteristics that distinguish ‘good’jobs and ‘good’workplaces might include:

• Safety
• fair pay
• social gradients in health
• job security
• personal fulfillment and development; investing in human capital
• accommodating, supportive & non-discriminatory
• control/autonomy
• job satisfaction
• good communications

This list is tentative, but clearly goes far beyond physical and mental exposures, demands and
risks. Further research is required into the characteristics of a ‘good’ job, and further consideration is required of the links between good jobs, health and productivity to support the principle that ‘good health is good business’ [34-35]

If you’re thinking that this “tentative” list of possible characteristics of “good work” doesn’t seem scientific or medical you’re right, it isn’t. There is not one part of the “health benefits of work” that is based on science.

What use is being made of the unproven, and unprovable “health benefits of (good) work”? Well it has turned up recently in the standard WorkCover forms. Here is an excerpt from the latest “PROGRESS certificate of capacity”:

Having considered the health benefits of work, I find this worker to have:
full capacity for work from[ ] but requires further treatment
some capacity for work, from [ ] to[ ] performing:
pre-injury duties modified or alternative duties workplace modifications
pre-injury hours modified hours of hrs/day days/wk
no capacity for any work from[ ] to[ ]

The certificate therefore requires general practitioners to endorse a matter for which there is no direct scientific evidence when issuing certificates to injured workers. There is an identical provision in the “FIRST certificate of capacity” and “FINAL certificate of capacity”.

Further even if it were true that good work did have a therapeutic effect on patients, how is a GP to determine if he/she is sending the worker back to good work when the definition of good work is still tentative? If a worker is not getting “fair pay” or “autonomy” does that mean they may be going back to “bad work”. Maybe there should be a box on the form: “Danger – Bad Work”.

So much for good work.

The other difficulty with WorkCover’s “health benefits of work” is conceptual: how does working actually assist a patient to recover from injury? Is all work therapeutic? Is work therapeutic for all injuries?

It is easy to imagine cases were returning to work will be, useless or even harmful to recovery. For example, a worker who suffers amputation of his or her hand as a result of a missing safety guard on a machine, is not going to regrow a hand by returning to work. If a worker acquires an occupational asthma such as Bakers Lung, returning to the workplace will only exacerbate that condition.

It seems that most of the conceptual and some evidential underpinning for the health benefits of work claim are drawn from the UK, and in particular from a study by Gordon Waddell, CBE DSc MD FRCS and A Kim Burton, PhD DO Eur Erg: “Is Work Good for your Health and Well-being?”. This review collates and evaluates the evidence on the question of the link between health and work, and was commissioned by the UK Department for Work and Pensions. “Pensions” immediately alerts the reader to the fact that the purpose of the paper was to look at the health of pensioners, that is, the long term unemployed.

The findings are underwhelming on the direct health benefits of work. For a start, it is conceded by the authors that in the case of sick and disabled people there’s no evidence of a causative relationship:

When their health condition permits, sick and disabled people should remain in or (re)-enter work as soon as possible because it variously:

• is therapeutic;
• helps to promote recovery and rehabilitation;
• leads to better health outcomes;
• minimises the harmful physical, mental and social effects of long-term sickness absence;
• reduces the risk of long-term incapacity;
• promotes full participation in society, independence and human rights;
• reduces poverty;
• improves quality of life and well-being.

This list combines two sets of evidence: clinical management is based on extensive clinical evidence and experience; disability rights are based on social justice and fairness. There may be little direct scientific evidence that work has a beneficial impact on the health of sick or disabled people, but valid consensus can be established on these other grounds.[33]

Establishing a “consensus” is not a method of scientific enquiry. In any event, what exactly is a “valid” consensus? Further, while it may be true that returning people to work reduces poverty or increases a patient’s status in the community, these are not health benefits of work, as such.

The point is made later on the same page that:

There may again be little direct evidence of the causal link between (return to) work and improved physical and mental health outcomes, but there is a clear association between better clinical and occupational outcomes. Importantly, there is no evidence that work has adverse effects on physical and mental health outcomes, except in very specific circumstances. The strongest arguments then lie in the benefits of work for general and social well-being [33].

In other words, the only health benefits of work are “general and social well-being”, and work won’t hurt you. This falls far short of the claim:

Good work is beneficial to health and therapeutic to recovery. Compelling evidence shows that supporting injured workers to return to suitable work early improves the likelihood of optimal recovery.

There is a paucity of “compelling evidence” to support this sweeping claim in the paper by Waddell & Burton, as the paper says itself. Another point worth remembering is that Waddell & Burton’s study was focused, for the most part, on the long term unemployed, the chronically sick and the disabled, and not on normally healthy workers.

The upshot is that there is no scientific evidence to support the health benefits of work generalisation, in the context of workers compensation claims, let alone evidence that is “compelling”. Further, there is no stated concept of how work produces a direct health benefit that could be of any use to a medical practitioner treating an individual patient who is recovering from a workplace injury.

Once weekly payments of comp have started, it is difficult for an insurer or employer to stop making those payments, unless you agree.

A Section 61 Notice is one way of getting a worker off payments, without the worker actually agreeing.

If you have just received one of these notices, your employer or employers insurer is trying to stop paying you your comp payments. If you do nothing about the notice, your payments will stop 21 days after you get the notice (but you still have your other entitlements). In other words if you do nothing you are taken to have “agreed” that your payments be discontinued.

If you don’t agree that your comp payments should stop, read on!

First Step

You must make a Conciliation Application (Form 100) to WorkCover WA within those 21 Days. Sometimes the 21 day period can be extended, but don’t count on it.

Second Step

Once you have put the Conciliation Application in, WorkCover WA will let you know when your first Conciliation Conference is to be held.

Third Step

You will need to work out how to challenge the Section 61 notice. This will depend upon your reasons for disputing the Section 61 notice. You may, for example, believe that you are not fully recovered from your injuries to the extent that you can return to work.

The Bottom Line

From here it gets tricky depending upon the medical evidence that came with the Section 61 Notice. Even though you can do the application yourself, we believe you shouldn’t. If you don’t know the system, then the playing field isn’t level. We recommend that you get legal advice as soon as possible after the Section 61 Notice arrives (from us, of course!). It can be difficult and expensive (but not impossible) to get back on payments, once they have been stopped. Phone our Helpline on (08) 9244 2666 and find out what to do.

According to WorkCover’s latest public relations handouts to medical practitioners, “work generally is shown to be good for health and wellbeing”, and “Research shows that early return to work is important to recovery”.

Let’s just pass over the amusing irony inherent in the claim that the very activity being performed by a patient at the time of injury, i.e. “work”, was in fact beneficial for that patient. Instead, let’s look at the evidence that WorkCover assures GP’s “overwhelmingly” supports these surprising statements. I’ll deal with the early return to work claim first since it is the most ludicrous.

Early Return to Work

Here’s the claim from WorkCover WA’s GP Support page.

Health benefits of work

Good work is beneficial to health and therapeutic to recovery. Compelling evidence shows that supporting injured workers to return to suitable work early improves the likelihood of optimal recovery.

The converse has also been found – where patients remain off work long-term, this can have significant side effects, including poorer physical health, mental health and psychological wellbeing.

When workers remain away from work, there is increased likelihood of not returning to work at all. If a worker is absent from work for:

20 days the chance of ever getting back to work is 70%

45 days the chance of ever getting back to work is 50%

70 days the chance of ever getting back to work is 35%

Therefore, assisting injured workers to return to suitable work earlier will likely increase their chances of optimal recovery, promoting physical and mental health and wellbeing.

The source for quoted statistics is a 2002 paper by Johnson & Fry “Factors affecting return to work after injury: a study for the Victorian WorkCover Authority”

So, the claim being made is that time off work causes time off work, because while they are away from work, workers are denied the “health benefits of work”. Denial of these benefits prejudices recovery, so workers take longer to get better. That this is so, is indicated by the table which shows a negative association between time off work and the chance of returning to work: greater absence – lower probability of return to work.

However, the claim is fallacious as (for a start) “correlation or association is not causation”. There are numerous examples available to illustrate this fallacy. An amusing one is as follows:

A correlation is when two variables vary together, whereas. For instance, ice cream sales may increase in the summer and decrease in the winter. The same may be true for drowning accidents. Does this mean we can draw the conclusion that drowning accidents causing ice cream sales? Does this mean that people have become so selfish and morally vile that they prefer to buy ice cream and watching people drown than trying to save them!? Fortunately, not really. Just because two variables vary together does not mean that one caused the other. It might be that the other caused the first, that they both cause each other or that a third factor causes both. In the case of ice cream sales and drowning accidents, a third factor that probably explain the correlation is season. In the summer, more people eat ice cream and go bathing, but fewer to these things in the winter. Click here.

Increasing absence from work may be associated with a lower probability of returning to work, but this does not show a causative relationship. In this case the “third factor” that explains the correlation is most likely a worker’s of severity of injury. That is, the length of absence from work is explained by the severity of a workers injury. Pretty obvious really.

Another example of the fallacy could cobbled from be the data presented at Figure 5.2 of Johnson & Fry, where an association is shown between hospitalisation and length of absence from work. The table shows a “base” worker could expect to face a probability of 50% of remaining on benefits after about 50 days following injury. However, if a worker undergoes hospitalization, the time taken for the probability of returning to work to fall to 50% is about 100 days, twice as long. Could we therefore conclude that hospitalization “causes” injured workers to remain off work twice as long? Perhaps it’s not hospitalization itself, but malign exposure to medical staff in hospitals that causes work absence! Perhaps a public education campaign is needed to alert GPs to this compelling evidence of the dangers to workers posed by hospitals.

I should say that my comments are in no way critical of Professors Johnson or Fry, or of their paper. They certainly do not claim that their paper provided compelling evidence of the health benefits of work. In fact, they outline, quite properly, in their concluding remarks, the limitations of their study and the need for further investigations.

The maximum amount that can be paid a worker by way of weekly payments is limited. The current “prescribed amount” is $212,980.00. This seems like a lot of money, and it is, unless you don’t fully fully recover from your injury, or take a long time to get better. If a worker is paid, say, about $60,000 per year gross, he or she has about 3.5 years maximum on weekly payments ($212,980 divided by $60,000 = 3.55 years).

Serious injuries, such as those to the spine, or to a major joint (eg to the hip, knee or shoulder), usually have a lengthy work-up period before a surgeon will offer surgery (12 – 18 months) and a lengthy convalescence following surgery. Sometimes revision surgery is required, further lengthening the process. The more severe an injury, the longer healing and treatment will take.

Often, during the course of such a claim, a worker will be required to perform “light” or alternate duties with his or her employer. For example, a manual worker my be taken off the tools and given work in the office. An example would be a roof plumber who undergoes a hip replacement and is trained into alternative lighter to work as a Health and Safety Officer.

However, problems arise where a worker is given a lighter job, expecting to return to his or her normal occupation after recovering from surgery. A couple of years pass with the worker is completing all the tasks required of the alternative role. At about the 2.5 year mark the surgeon says that the operation has been successful, but not to the extent that the worker will be able to return to manual work. Bad luck. Meanwhile, the employer “restructures” and decided to cull the office staff, and you-know-who is the first cab off the rank. We are now at the three year mark, and since the worker cannot medically return his or her old manual job, and the employer is no longer offering alternative duties, the worker decides to claim compensation, until he or she can be rehabilitated into a new line of work.

The problem is that all the time the worker was performing alternative work he or she was on comp (not wages), and consequently there are no weekly payments left to survive on, whilst looking another occupation.

This is roughly the type of factual scenario dely with in an appeal from a decision of an Arbitrator in Glenn v Compass Group [2014] WADC 86. It appears that this decision is authority for the proposition that anything paid by an employer, outside a return to normal duties, is a payment of compensation, and not wages. Workers watch out, because even when you are working full time at a real alternative job, you could still be on comp and eating away your limited right to weekly payments. The decision is being appealed, we’ll keep you posted.

One implication concerns a worker’s “Duty to Mitigate”. If returning to work doesn’t involve payment of wages, then how is a worker mitigating his or her loss by participating in a return to work scheme?