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Everyone has the right to go to work each day, knowing they’ll come home safely. If you’ve been injured or become ill at work you may be entitled to make a claim for workers’ compensation to cover lost wages, medical and rehabilitation costs, retraining expenses or a lump sum payment for permanent injuries.
There have been a lot of changes to arrangements in NSW for seeking workers’ compensation in recent years. You could be forgiven for being a little confused about where to start. After all, workers’ compensation laws and entitlements are already a little hard to keep up with because they vary between states and territories and may be known as WorkCover, CTP or WorkSafe. Compensation and benefits can vary greatly depending on your injury and on the law you’re covered by.
If you’ve been injured at work in NSW, Littles has you covered. This blog explores when an employer can terminate you if you’ve made a workers’ compensation claim, and what your options are.
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Many people worry about making a workers’ compensation claim and that their employer may treat them differently as a result – or even terminate their employment. You should know that if you’re injured at work in NSW and on workers’ compensation, your employer cannot legally terminate you within the first six months of your injury purely because you’re unfit to resume work. This period is the ‘protected period’.
An employer may terminate an injured worker after this period – assuming they have a lawful basis to do so. However, this does not necessarily abrogate your right to workers’ compensation payments. On top of this, you may still have options to seek reinstatement.
Before an employer considers terminating you, even after the ‘protected period’ (six months from the date of injury), they’re obligated to do everything possible in order to help you get back to work. This includes:
• actively playing a role in developing an injury management plan to get you back to work
• complying with their obligations set out in the injury management plan
• providing you with suitable work duties, wherever practically reasonable, once you’re cleared to return to work under certain restrictions
• providing you with suitable work duties, wherever practically reasonable, that are similar to the work you performed prior to your injury.
If your employer fails to adhere to any of these obligations, you should immediately report this to the workers compensation insurer and the State Insurance Regulatory Authority (SIRA). Failure to adhere to these obligations could see your employer at risk of heavy fines in excess of $11,000.
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Don’t worry – if you’re terminated for not being able to work due to your injuries whilst on workers compensation, you’ll still be entitled to your workers compensation benefits as long as your doctor continues to certify you unfit to carry out your pre-injury duties.
It works like this:
• if you’re unfit to return to work, you’ll continue to receive reasonably necessary medical treatment and weekly benefits in accordance to your entitlement period
• if you’re unfit for pre-injury duties but fit for suitable duties, you’ll continue to receive reasonably necessary medical treatment and weekly benefits in accordance to your entitlement period.
It’s also important to note that if your employer was paying your weekly benefits prior to your termination, this will now stop, and the workers’ compensation insurer will now pay your weekly benefits directly to you.
If you’re terminated or made redundant purely because you’re unfit for work due to your work injuries, you certainly have a right to apply for reinstatement when you are fit. If your doctor has certified you fit to resume your pre-injury duties, you can apply to the Industrial Relations Commission for a reinstatement order as long as this application is made within two years of the dismissal.
If you’ve been terminated or made redundant purely because you’re unfit for work due to your injuries, you can still sue for damages as long as :
• your work injury was the result of your former employer’s negligence, and
• your whole person impairment is at least 15 percent.
If you meet the above criteria, you can make a work injury damages claim which is a lump sum payout for past and future loss of earnings, compensation for wages and superannuation lost because you have been unable to work or are unable to work into the future.
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Clearly, the workers’ compensation system can be complex, which is why it helps to seek quality legal advice as soon as possible. At Littles, we are experts in workplace injuries, and can help manage the process to ensure that you receive all appropriate entitlements and support. With Littles on your side, we can ensure that you get the fair treatment you deserve.
If your workers’ compensation claim has been rejected, or you would like to understand how to claim benefits to support you and your family while you are injured or ill, please get in touch for a no-obligation chat.
IMPORTANT: There are strict time limits for making and disputing a claim, so take advantage of our FREE initial consultation and get in touch. You have nothing to lose by speaking to one of our compensation law experts. The sooner we determine your eligibility to make or appeal a claim, the sooner we can help you to obtain or continue getting funding from the insurer so your rehabilitation can proceed smoothly.
Not only do we offer a FREE initial consultation we handle most insurance claims on a no win, no fee basis.
The Head of our NSW team, Jessica Cheung, is an expert in NSW workers’ compensation claims. If you think you might have a claim, reach out to Jessica and her team for high quality legal advice
Please note that this information is intended to provide general guidance only. You should not act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your individual circumstances. For further information, please contact Littles.