In a recent District Court decision by Judge Davis, an interesting issue as to the obligations owed by a rehabilitation provider to an injured worker were explored.
The Decision, Lines v Workfocus Australia Pty Ltd  WADC 203, delivered on 23 December 2009 confirmed, though it appears this may have been something conceded by the Defendant, that a rehabilitation firm owed a duty to the relevant worker, Mr Lines, to exercise reasonable care and skill in the provision of their vocational rehabilitation services to that worker. The case arose in the context of a return to work program, during which Mr Lines had apparently aggravated his initial work injury.
For my part, there has always been some controversy concerning the rehabilitation providers’ obligations to the worker given the potential for conflict between the interests of the worker and the party meeting the costs of such rehabilitation, the insurer.
Although this issue was not identified by Judge Davis, her finding that a duty of care was owed to the relevant worker implicitly supports a view that any such conflict must be resolved to the benefit of the worker. Judge Davis articulated the obligations owed by a rehab provider to the worker, relevant to design of a return to work programme as:
I consider that the precautions which a reasonable person in Workfocus’ position would take against the risk of a worker suffering a further back injury while on a return to work program would be to:
1. Consult with the worker’s doctor about the worker’s injury, the medical diagnosis, the prognosis, any restrictions on the workers’ physical abilities and any recommendations which that doctor had to assist the worker to return to work.
2. Obtain the approval of the workers’ doctor to all stages of the return to work program.
3. Advise the worker that if he has any increase in symptoms, that he let his supervisor know, and also notify the vocational rehabilitation provider so that the provider can both amend the return to work program and follow up with the worker’s doctor
The most interesting observation that can be made, is that on this test, the worker’s own doctor (presumably their GP) has enormous importance and effectively, unless they are prepared to approve of a program, a rehab provider cannot insist upon the worker’s participation.
Judge Davis, found that all of these matters had been observed by the provider.
The decision has been appealed against by Mr Lines.