Will I lose my job if I claim workers compensation?

If you’ve suffered a work-related injury or illness, you probably want to recover and get back to normal as quickly as possible. Getting back to work is an important part of getting your life back on track.

Research shows that returning to work can help speed up recovery – whether the injury is physical or psychological. And the longer you’re away from work, the less likely you are to return.

However, many workers worry that they won’t have a job to go back to when they recover from their workplace injury. They believe their employer will terminate their employment if they claim workers compensation. You may have asked yourself Will I lose my job if I claim workers compensation?

Thankfully, there are laws to protect employees who claim workers compensation. And employers and insurers have an obligation to help them return to work as soon as it’s safe to do so. 

Read more about returning to work after a workplace injury or illness, and contact Main Lawyers if you’ve been treated unfairly by your employer after claiming workers compensation.

Understanding workers compensation

Workers compensation is insurance that all employers must take out to cover them if workers are injured or become ill due to their job. It provides financial support – such as lost wages and medical expenses – while you recover. If your injury is very serious, it may include a lump sum payment for permanent impairment. 

Each state and territory has its own workers compensation legislation, but they are very similar. They generally cover all employees – full time, part time, casual and apprentices. Sometimes even volunteers.

WorkCover Queensland manages workers compensation in Queensland, while the State Insurance Regulatory Authority (SIRA) is the regulator in New South Wales

How long can you stay on workers compensation?

How long you can get WorkCover depends on factors like:

  • the extent of your injury and how it impacts your quality of life
  • your treatment and rehabilitation requirements
  • whether you can continue to do your job.

You can generally receive workers compensation payments until you return to work; reach the maximum limit of weekly compensation payments; or have received payments for 5 years.

After 5 years, you’ll stop getting weekly workers compensation payments and funding for medical treatment.

In Queensland, WorkCover may provide support until you reach ‘maximum medical improvement’. This means your injuries have become ‘stable and stationery’ – you’re unlikely to get any better. 

If you haven’t fully recovered at this point, you probably have a degree of permanent impairment. You will go for a medical assessment to find out what your percentage of permanent impairment is and you will get an offer for a lump sum payment. 

We recommend getting professional legal advice before you accept any lump sum offer, so you understand all your options and the consequences of any decision, so you can make the best choice.

Workers compensation and total and permanent disability

If you meet the criteria for both a workers compensation claim and a total and permanent disability claim, you may be able to receive both payments.

You would claim total permanent disability benefits through your superannuation fund rather than workers compensation.

Being fired on workers compensation

Under your state’s workers compensation scheme, there are rules in place to protect you and your job while you are recovering from your workplace injury. So you don’tneedto worry about that common question of will I lose my job if I claim workers compensation.

For example, it’s illegal for your employer to terminate you within a specified protected period just because you have a work-related injury or disease and can’t do your regular duties. In NSW, the protected period is 6 months, while in Queensland it’s 12 months.

If you’re terminated from your job down the track – after this protected period – while on workers compensation, you will continue to receive benefits if you have evidence, such as doctor’s assessment, that you still can’t perform your previous work tasks.

Being made redundant on workers compensation

Your employer may need to make your role redundant while you’re on WorkCover. If this occurs, they still need to meet their obligations under workers compensation law and give you the appropriate notice. You should also receive any redundancy payments you’re entitled to.

Claiming workers compensation after being terminated

If you suffered a workplace injury and didn’t claim workers compensation at the time, you might still be eligible to make a claim later, even if your role is terminated. The important thing is to have the required evidence to prove your workplace injury.

If you’re terminated or made redundant while you’re on workers compensation, contact our experienced workers compensation lawyers to discuss your options.

Claiming workers compensation after you resign

If you decide to resign from your role, you can still claim workers compensation for a workplace illness or injury after you resign. As long as you meet the timeframes for lodging a claim, you can do so whether or not you’re working.

If you plan to resign, our workers compensation lawyers can walk you through the options and tell you about any pitfalls to be aware of.

Employer obligation to provide work on your return

Many workers wonder if they’re allowed to return to their job after being on workers compensation. Not only are they allowed to – it’s in their best interests to do so!

You can return to work after making a workers compensation claim (even if you received a permanent impairment payout). If you recover from your injuries or illness and it’s safe for you to work again, your workers compensation claim should not affect how your employer treats you or stop you getting another job in future.

In fact, your employer must do everything they can to help you return to work. This includes:

  • working with you to develop an injury management plan
  • meeting their obligations under that plan
  • providing suitable duties for you in line with your ability as your recover.

These ‘suitable duties’ must be safe for you and within your capacity. This might be:

  • the same job with fewer hours
  • parts of the same job that are safe for you to perform
  • different duties than you performed before
  • a different work location
  • a combination of these.

There are many benefits to performing lighter or different tasks rather than staying away until you’re 100% ready to go back to your old job.

You can:

  • continue to earn an income
  • get more confidence in your abilities as you get stronger
  • learn new skills or knowledge
  • maintain your routine to keep you busy.

There are benefits for employers too, as they don’t need to train up new staff, and the skill level of their workforce remains stable. 

Everyone benefits when workers are able to return to work quickly after a workplace injury.

Are you guaranteed your old job back? 

You have the right to go back to your old job once you’ve recovered. This is true whether you’re a full-time, part-time or casual worker. 

Within the protected period after your injury (6 months in NSW and 12 months in Queensland), you can ask your employer for your old job back. You just need to provide a medical certificate that shows you’re physically and psychologically ready to return.

If your employer won’t reinstate you to a position that’s equivalent to the job you had before your injury, you could apply to the Industrial Commission for a reinstatement order. This orders your employer to return you to your old job.

As this can be a complex and lengthy process, you should seek legal advice to ensure the process is followed correctly to get you the best outcome.

Return to work plan

When it’s time to return to work, WorkCover will work with you, your employer and your medical professional to develop a rehabilitation and return to work plan for you. As discussed above, you don’t need to be fully recovered. Your employer must find suitable duties for you.

This plan outlines how all the parties will work together to get you back to work safely.

If your employer can’t find any suitable duties for you – as it’s not practical or safe in your particular workplace – WorkCover has a program where you work for a host employer until you can return to your previous job.

The Recover at Work program allows you to earn an income and use your skills while you get back to full health.

Of course, the overwhelming majority of injured or unwell workers are fully recovered and back to work within a few weeks. But it’s good to know there are options and support available to you – and no reason why you should lose your job because you need to claim workers compensation.

How Main Lawyers can help

While there are laws to ensure workers don’t lose their job after claiming workers compensation, not every employer abides by them. 

We have helped many workers who have lost their jobs or been demoted for taking time off to recover or requiring lighter duties when they return to work.

At Main Lawyers, we have the expertise to get you the best possible outcome. Contact us today for a free consultation to find out how we can help!

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