Losing your job is stressful enough, but what if you’re also dealing with a work-related injury or illness? A worker may mistakenly believe that being terminated automatically disqualifies them from claiming workers compensation. This isn’t necessarily true. While termination can add complexity to the process, it doesn’t automatically negate your right to compensation.
Understanding workers compensation in South Australia
South Australia’s workers compensation system, managed by ReturnToWorkSA, is designed to support workers who have suffered injuries or illnesses as a direct result of their employment. This includes physical injuries, psychological injuries, and gradual onset conditions developed over time.
An important point to remember is that you should report any injury or illness to your employer promptly, even if you suspect you might be terminated later. This creates a record and can strengthen your claim. However, while promptly reporting injuries to your employer can enhance the credibility of a claim, it does not guarantee success. You must prove that the injury resulted from your employment.
Steps to take when claiming workers compensation
- Notify your employer: Ideally, you should notify your employer of the incident/injury whether you remain employed or not, preferably within 24 hours or as soon as possible.
- Seek medical attention: It is important that you notify a doctor about the incident and your injuries as soon as you are able to. You should carefully describe the circumstances surrounding the injuries and/or symptoms that you may be experiencing. Ensure that you discuss all symptoms with the doctor, no matter how insignificant you think they may be.
- Workers’ compensation practitioners: Due to the complexities of the workers compensation scheme, some medical practitioners prefer not to see patients where a workers compensation claim is likely. If the doctor informs you that they do not handle workers compensation claims, we invite you to contact our office for the names of medical practitioners that can manage your injury claim.
- Work capacity certificates: If your injury or injuries have caused you to suffer from an incapacity to return to your normal work duties (whether partial or a complete incapacity) you will need to ask the doctor to provide you with a ReturnToWorkSA Work Capacity Certificate. These forms are generally available from the ReturnToWork SA website and must be completed and signed by your doctor, then accompany your claim for compensation under the return-to-work legislation.
- Notify ReturnToWorkSA: A claim can be lodged by either your employer or yourself, by telephone or in writing. If your employer is a self-insured employer (generally a larger business) you will probably be dealing directly with the injury management department of your employer. In other cases, a claims agent, currently, either Employers Mutual Limited or Gallagher Bassett Services, will be appointed to investigate your claim.
- Investigations: All claims for compensation can be subject to investigations to determine the injury and the connection with your employment (the cause). Investigations may include obtaining medical reports from your doctor or other health care providers (physiotherapist, psychologist etc). You may also be referred to see a specialist doctor for a medico legal opinion. Clinical notes from your medical practitioners and healthcare providers may also be obtained. Investigators may even be engaged to interview you and/or witnesses to obtain further evidence.
- Interim Benefits: If the claims agent is unable to make a timely decision on your claim and wishes to proceed to further investigations, you may be entitled to receive income support and medical treatment before the claim is accepted. It is important that you are aware that if your claim is rejected, you may be asked to repay expenses incurred by the claims agent during the interim benefits period.
- Gather comprehensive evidence: The claims agent will keep all records of doctor/hospital visits, clinical notes, medical reports, witness statements, employment records, and any communication related to your injury and termination.
- Seek legal advice: Consulting an experienced workers compensation lawyer is highly recommended to guide you through the sometimes-complex process and to ensure you understand your rights and obligations under the workers compensation scheme.
The impact of termination on your workers compensation claim
While termination does not automatically invalidate a legitimate claim for workers compensation, it can introduce complexities and challenges to a successful claim.
Your claim will almost certainly face increased scrutiny, and disputes can arise regarding the cause and severity of your condition. For example, in some cases, lodging a claim for workers compensation after your employment has been terminated may be perceived as a former employee trying to ‘get back at their employer’.
The reason for termination can also play a role. Redundancy is generally less problematic than termination for performance issues or misconduct.
Regardless of the reason for termination, documenting everything is critical. Keep records of medical appointments, communications with your employer, discussions with other workers, and any evidence supporting your claim such as visits to the hospital or your healthcare provider, clinical notes and medical records.
Navigating time limits
Time limits apply for seeking workers compensation in South Australia. Generally, workers should notify their employer as soon as practicable after sustaining an injury, and a compensation claim should be made within 6 months of the entitlement to the compensation arising.
The longer you wait to lodge a workers compensation claim, the more complex the process is likely to be. However, a delay in lodging a claim may not prevent it from succeeding if there was a good reason for the delay, and each case must be assessed on its merits.
Importantly, you will only have 1 month to lodge an Application for Review in the South Australian Employment Tribunal, in the event that your claim is rejected, and you do not agree with the decision.
Potential disputes and how to address them
Disputes are common, especially when claiming workers compensation after termination. They may involve arguments about the cause or severity of your injury, or the legitimacy of your claim given your employment status.
South Australia has in place a dispute resolution processes referred to as Conciliation. The conciliation processes are generally held before a Commissioner of the South Australian Employment Tribunal. At this stage of the proceedings, the parties can engage in relatively informal communications in order to negotiate a resolution. If a dispute is not resolved at conciliation, the Commissioner will assess the facts and the evidence and make recommendations to one of the presidential members of the Tribunal for hearing and determination. Strong evidence and legal representation are essential for navigating these processes successfully.
Return to Work Considerations
Even after termination, you retain certain rights regarding return to work. Your termination might complicate return-to-work plans, but it doesn’t eliminate your potential for rehabilitation and retraining or upskilling. You may also be eligible for alternative employment options if you are unable to return to your previous role.
Conclusion
It is possible to lodge a claim for workers compensation after the termination of your employment, and the success of the claim depends on the type of evidence available to prove you suffered an injury at work or that your employment contributed to your injury.
This is general information only and it is important to seek legal advice specific to your circumstances to ensure the best chance of securing the compensation to which you are entitled. If you or someone you know wants more information or needs help or advice, please call Tolis & Co on 08 8443 4888 or email [email protected].