Employers have set requirements, things they can do, and things they can't do in the event you're injured at work
They can make certain requests (like independent medical reviews), but your employer can't control (or attend without your consent) any of your treatment
If you're looking for further information about your specific circumstances or the relevant legal framework, you may want to seek independent legal advice.
The rights and obligations outlined below are general in nature and may vary depending on the circumstances and applicable legislation.
Most workers are covered by their employer’s worker’s compensation insurance. Known as the ‘WorkCover scheme’, it allows injured employees to access compensation for their lost earnings, medical expenses, and any other associated costs while they can’t work.
This comes with several key rights and advantages for employees:
Eligibility doesn’t consider fault – Worker’s compensation can be accessed for any workplace injury, no matter whether the employee is considered responsible for the injury or not (excluding some extreme circumstances, such as being willingly intoxicated).
Employees oversee their own recovery – While there are forms and processes to help you access worker’s compensation, employees are generally able to choose their treating professionals, while employers and insurers also play a role in managing the claim and return to work process.
Employers are generally required to keep the injured employee’s position open for a prescribed period (usually up to 12 months) from the date of incapacity, subject to legislation and the circumstances.
If the original job is no longer available or the person is no longer physically fit to fulfil its duties, they may be required to provide their employee with alternative duties (where reasonably practicable and consistent with medical advice).
Employers must provide a copy of the Worker Compensation Claim Form immediately following the employee’s injury or incapability to work. Once they receive a completed copy (and a medical certificate) back from the employee, they have 7 days to submit it to their insurer to get compensation moving.
Every employee is required to have a documented IMS already in place, that they can refer to in the event of an injury. This will inform them of the general procedures, roles, contacts, and action plans they’ll follow. WorkCover WA offers some useful templates on creating an RTW program.
Once the employee receives a Certificate of Capacity and is able to resume work duties (either partial or full), the employer will start putting together a RTW program. This usually details things like duties, hours, medical goals, etc.
Once the employer’s insurer accepts the claim for worker’s compensation, the employer must start making income payments on the worker’s usual payday. If those payments change or are stopped for any legal reason, the employer must still give the employee 21 days’ written notice.
Along with the clearly defined responsibilities of an employer, there are certain actions they are explicitly not allowed to take. These can include:
Choose the treating doctor – The injured employee is always charge of the doctor who manages their treatment. Later in the journey though, employers or insurers can request independent medical examinations in accordance with the legislation.
Attend any medical appointments – No matter who books the appointment or why it’s occurring, an employer is not generally allowed to attend any of the employee’s medical appointments or meetings with doctors (without the employee’s consent).
Stop or pause payments abruptly – Even if the employee has been dismissed, once they’ve started, payments can’t be stopped or paused without giving the worker 21 days’ written notice.
Terminate a worker while on WorkCover – Employees gain extra protections while they’re on WorkCover, which means dismissals have added restrictions. That means that someone’s inability to work won’t automatically justify them being let go.
The Work Health and Safety Act 2020 (WA) doesn’t specifically limit when employers can and can’t test for drugs and alcohol. But in specific circumstances (where there hasn’t been a disability or fatality), a claim can be disallowed or reduced if the person was found to be willingly under the effects of drugs or alcohol (and that contributed to the injury.
To test their employee, the employer would likely need to have:
reasonable suspicion the employee was intoxicated
procedures and policies in place (and they’re consistently applied)
a contractual requirement with the employee that testing will be conducted in the event of an incident or injury (this is common in certain lines of work, such as pilots or train conductors).
But if the employer makes an employee take a test without reasonable cause, without existing policies and in a way that is inconsistent with other processes, the employee may be justified in refusing to take the test.
It’s another murky area, but under the Workers Compensation and Injury Management Act 2023 (WA), employers can seek an Independent Medical Examination (IME) in certain circumstances, such as where they want to:
determine if the injury was genuinely work-related
gauge the employee’s current ability to perform their duties
get a second opinion to determine the nature or degree of the injury
confirm if the employee has improved as much as they can medically.
But there are extremely strict (and defined) limits on these in WA legislation. The law imposes limits on IMEs, including requirements that they be reasonable in frequency, arranged at appropriate times, and paid for the employer or insurer.
Navigating your physical and mental recovery, insurance coverage, and your legal rights and responsibilities is more than a single person should handle alone.
Understanding your rights and your employer’s obligations after a workplace injury can help you make informed decisions about your situation.
If you require further information about your circumstances or the relevant legal framework, you may wish to seek independent legal advice.
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