Unable to return to pre injury duties – what you need to know
If you are unable to return to pre injury duties after an injury, there are some options open to you.
However, what your options are will vary depending upon whether;
- The injury is work related and you have an accepted WorkCover claim
- The injury is work related and you do not have an accepted WorkCover claim
- The injury is not work related.
The rest of this page will explore what your options are, depending upon which category you fall into.
Table of Contents
If the injury is work related and you have an accepted WorkCover claim
If the injury is work related and you have an accepted WorkCover claim, then the WorkCover claim will give you a certain level of protection.
52 weeks suitable duties
If you have an accepted WorkCover claim, the employer is required to provide you with suitable duties for a period of 52 weeks.
So if you are unable to return to your pre-injury role because of an injury, the employer is required to provide you with duties that you are capable of doing for a minimum of 52 weeks.
Suitable duties being those duties that, medically speaking, would be appropriate given your injury.
If you were in a role that required manual lifting pre injury and you suffered a shoulder injury, suitable duties might mean doing admin type work.
Or, it might simply be a reduction in hours.
If, for example, before the injury you were employed working 38 hours a week, now it might simply be that you work 15 hours a week which gives you reminder of the week to recover before you are required to work again.
The bottom line is that the suitable duties must be appropriate from a medical perspective, as agreed by your treating medical practitioner/s.
If there are no suitable duties that the employer can offer you, then you are not required to return to employment and you are entitled to be paid weekly payments by the WorkCover insurer at either the 95% or 80% rate, taking into account your pre injury average weekly earnings.
What about after the 52 week period?
Here’s where the protection may end.
If you are not able to return to your pre injury duties after 52 weeks, the employer can look at terminating your employment.
You can read more about this on our WorkCover after 52 weeks page.
However, they cannot simply terminate your employment just because you’ve hit the 52 week mark.
There is a process that they should go through before they terminate a persons employment.
The correct procedure is that they would need to obtain medical material from either your treating doctor or doctors, or have you medically assessed by an independent medical examiner (or both).
Medical opinion is required on what your work capacity is, and if you have an incapacity for your pre injury role, whether that is likely to continue.
If medical opinion is such that you are not likely to be able to return to your pre injury role, then the employer can look at terminating your employment.
We mentioned above that employer cannot terminate a persons employment just because they’ve hit the 52 week mark.
To clarify, an employer can terminate an persons employment after 52 weeks without any medical opinion, but by doing so they may be leaving themselves open for the employee to pursue an unfair dismissal or general protections claim.
You’ll get an indication from an employer that they are looking to review your ongoing employment with them after 52 weeks if they ask you for your permission for them to obtain medical material from your treating medical practitioner, usually your GP.
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They may request that you sign an authority which is a bit of paper that gives them permission to request medical material relating to you.
A word on these authorities:
Oftentimes these authorities are broader than they need to be.
And by signing a broad authority you are giving your employer the right to not only request medical material relating to your work injury and ongoing capacity or capacity to perform your current work role.
You are giving them permission to request any medical material relating to you that they may wish to obtain.
This may mean for example that they are able to request a full copy of your clinical notes from your general practitioner or surgeon.
So our recommendation is that if you are asked to sign one of these authorities, to obtain advice from a lawyer in relation to it before signing.
These broad authorities can often be narrowed down so the employer will only have the ability to request medical material relating to the specific work capacity issue that needs to be addressed.
Insurer may assist with occupational retraining
One thing worth mentioning here is that the WorkCover insurer may assist you to either return to a different role with the injury employer, or to find a new role with a different employer.
Insurers will usually offer access to re-training and occupational rehabilitation services. Sometimes so they will pay for different courses and whatnot for a person to undertake.
However, if you ask many injured workers who have obtained assistance from an insurance company in this regard, they’ll be less than complimentary about how helpful the assistance was.
However, if you’re in this position of job uncertainty and you need assistance perhaps by way of re-training it’s a good idea to contact the insurer and just find out whether there’s anything that they can do for you.
Obtaining a new job
Let’s say that you are unable to return your pre-injury role and you have an accepted WorkCover claim.
You might be wanting to find a new job with a different employer.
This is fine and is something that you’re entitled to do and for the most part it will not impact your WorkCover claim.
If you want to know about what impact having a WorkCover claim may have on prospective employer, you can read about that here.
However, there is one aspect of a WorkCover claim that may be impacted that you should be aware of.
And that is if you’re in receipt of weekly payments.
In some instances, if you quit your job with the employer with which you suffered injury while you have an accepted WorkCover claim, and if you’re in receipt of weekly payments at that point, the insurer may terminate your entitlement to weekly payments.
The way to prevent this (as much as possible) is to ensure that when you resign from your employment because you are unable to work or return to your return to your pre injury role, you need to make it clear wherever you can (eg: in your letter of resignation) that the reason that you are resigning from your employment is because of your work related injury and the incapacity that relates to that.
How does the fact that you can’t return to your pre injury role impact your WorkCover claim?
The first way that not being able to return to your pre injury role is relevant in relation to a WorkCover claim is in relation to weekly payments.
Let’s say that you do have a capacity to return to work but not your pre injury role.
Weekly payments are payable in most instances for 130 weeks and will cease at that point if you have a work capacity.
Having the capacity to return to some work but not your pre-injury role would satisfy this test and therefore your payments would likely be terminated by the insurer.
If after 130 weeks you are able to return to some work, whether with your Injury employer or with a new employer (even in self employment) but you are limited in the amount of work that you can do, you may still be entitled to payments from the insurer.
Common law claim
Another way that not being able to return to your pre injury role is relevant in relation to a claim is in relation to the common law aspect of your claim.
If you are successful in a common-law claim, you can be compensated for pain and suffering and potentially economic loss if as a consequence of the injury your work capacity has been impacted.
In relation to the pain and suffering aspect, the fact that you are not able to return your pre injury roll is a relevant pain and suffering consequence.
In order to be entitled to claim loss of earnings, unfortunately it is not as simple as just demonstrating that you have a loss of earnings and will likely have a loss of earnings into the future as a result of your injury.
There is a test that must be met.
The test is that you have a 40% loss of earning capacity as a result of the injury.
So say that you were earning $1000 week in week out before the injury happened.
In order to be entitled to claim loss of earnings, you need to be able demonstrate that there’s no job out there that you could do where you would be able to earn $600 or more dollars a week.
So if you can’t return to your pre-injury role and you satisfy the loss of earnings test, then potentially you can be compensated for loss of earnings relating under a common law claim.
However, if you cannot return your primary role but you can earn similar amount of money working a different role, with your current employer or with a different employer, it’s likely you will not satisfy the relevant loss of earnings test for the purposes of a common law claim.
The injury is work related but you have no WorkCover claim
If you have a work related injury but have not lodged a WorkCover claim and you have some capacity for work but you are not able to return to your pre-injury role, you do still have options open to you.
You are not entitled to the 52 week modified duties protection as outlined above as you would be if you had a WorkCover claim however.
Can the employer make reasonable adjustments?
Is the employer able to make reasonable adjustments to your job to enable you to return your primary role (obviously within reason)?
If you think the employer can make a reasonable adjustment or adjustments which would enable you to work your pre injury role, then you can always discuss this with them.
Could the employer change your role?
If you can’t return to your pre injury role, you could always speak to your employer about working a different role within the organisation.
The employer is under no obligation to provide you with this alternative role, but many employers will accommodate people that they wish to retain in another roles.
If this is applicable to you and you are thinking of changing roles with an employer, you may be required to sign a new employment contract. If you’re not completely sure what the contract say, get your lawyer to look over it and explain it to you.
You should ensure that by taking on the new role you are not resigning from your current role and ‘resetting’ your employment period. Doing so would likely result in your employment entitlements that you may have accrued – annual leave long service leave and whatever else – being reset and lost.
The employer may look to terminate your employment
If you can’t return your pre injury role, the employer can look at terminating your employment.
As mentioned previously, you will not have the protection of the 52 week suitable duties period that you would have if you’ve got a WorkCover claim.
So the employer may look at terminating your employment at any point after an injury happens.
However, they, if proper procedure is being followed, will require medical material addressing your work capacity before doing so.
If they were to terminate your employment without this medical material addressing what your work capacity is now and into the future then It’s possible that you may succeed in an unfair dismissal claim or a general protections claim or possibly an equal opportunity claim.
This might also be the case if the employer obtained medical material confirming, for example, that you currently have an incapacity for your pre injury role, but that may change over the following weeks or months.
An important point is that if your employment has been terminated, if you wish to pursue a dismissal application or a general protections application via the Fair Work Commission you’ve got 21 days from the date the dismissal came into effect to do so.
You can obtain an extension of this time period but it is difficult to do so.
If the injury not work related
If you have an injury that is not work related that is preventing you from returning to your pre-injury role, then your options for the most part the same as if you had a work related injury which you have not lodged a WorkCover claim for.
The main difference between having an injury that is work related but not having a WorkCover claim, and having an injury that is not work related, is that in some instances employers may be more accommodating to a person that has suffered a work related injury.
If because of an injury you’re not able to return to your pre injury role, you do have options. What those options are will depend upon which category you fall into: work related injury and WorkCover claim lodged, work related injury no WorkCover claim lodged, and non work related injury.
If you have a work related injury and you’ve lodged a WorkCover claim and can’t return to your pre injury role, then the employer is required to offer you suitable duties for at least 52 weeks.
Your employment can be terminated after that if the incapacity continues, but an employer should have medical material confirming the incapacity