This is a question that we are asked regularly, and for good reason.
The short answer is yes, but there are some conditions.
Termination of Employment While on Workers’ Compensation
If you have suffered a work-related injury and you have been unable to work for 12 months due to your work-related injury and you are medically unfit to return to work for your employer, your employer can then terminate your employment.
For the first 12 months of your WorkCover claim, but only if you are medically unfit for work for the first 12 months, your employer cannot lawfully terminate your employment.
Can you claim WorkCover after you resign?
If you decide to resign from your employment on medical grounds within the first 12 months after your injury, it is only wise to do so with the support of your treating doctor or doctors. If you do resign on medical grounds and within the first 12 months of your injury, there is no reason why you cannot continue to receive assistance from WorkCover Queensland, including funding for your replacement wages at either 85% or 75% of your normal weekly earnings and funding for your medical, rehabilitation, travel and pharmaceutical needs.
It would be unwise to resign from your employment due to your work-related injury without giving yourself a good opportunity to recover, heal and fully explore all rehab options to try to return to work. Resigning from your employment without good reason or sufficient reason can also cause problems with the management of your WorkCover claim, as the claims manager from WorkCover might then see some justification to cease your weekly benefits if you have resigned from your employment without good or sufficient justification or reason.
Part of WorkCover Queensland’s charter or purpose is to try to get injured workers back to work and back to their old jobs as quickly as possible. This drives much of what takes place when injured workers are dealing with WorkCover claims managers. It is important for injured workers to receive all of the assistance they require to help them return to their existing roles if this is possible. If this is not possible, then retraining options need to be considered if the injured worker retains some residual earning capacity.
What Happens If I Work For a New Employer?
If an injured worker has been terminated by their employer while they are still on WorkCover but after the first 12 months, it is highly likely that WorkCover will organize some host employment, however, the injured worker will continue to receive weekly benefits at the rate of 75% of their normal weekly earnings.
If the injured worker continues to be unable to work up to the 2 year mark after sustaining their work-related injury and if their work-related injury results in an impairment of the whole person of at least 15% then the weekly benefits will continue to be paid at 75% of normal weekly earnings. If the impairment is under 15% then the weekly benefits will drop down to the Centrelink pension rate.
If you have been terminated by your employer during the statutory claim with WorkCover and if you are unable to work or unable to find alternative work due to your injury and if the proposed common law claim for damages has reasonable or strong prospects of success, you can recover all of your past loss of wages and also future lost income or wages if but only if you pursue the common law claim.
What’s The Difference Between a Statutory Claim and a Common Law WorkCover Claim?
There is an important difference between the statutory claim and the common law claim. The statutory claim is a ‘no fault’ system or environment so when WorkCover accepts or admits liability for the statutory claim which provides for weekly benefits, medical treatment rehabilitation and the like, this does not mean that WorkCover will accept or admit liability in the common law claim.
To succeed in the common law claim, you need to be able to establish or prove on the balance of probabilities or 51% or better that your employer was negligent. We do this or achieve this by looking very carefully at the system of work, how the accident or injury or illness occurred, why it happened and how it could have been avoided through the exercise of reasonable care by the employer.
For the common law claim, it is essential for legal advice to be obtained and as soon as possible as strict time limits apply.
For all common law claims, court proceedings need to be commenced within three years of the date of the accident/injury.
The benefit of the common law claim is recovering compensation or damages for pain and suffering, out of pocket expenses, past and future loss of income, past and future loss of superannuation and future medical treatment costs.
For many of our clients at vbr Lawyers, a positive outcome from the common law claim can have a hugely positive and important impact on their financial wellbeing and their future.
