Can employer's pay workers' compensation without WorkCover?
I recently spoke with a new client who had sustained a shoulder injury at work. He was getting his medical and like expenses paid by his employer, and the employer paid for surgery to the shoulder which would have cost many thousands of dollars.
The employer was also paying the worker’s wages, both when he was unable to work at all due to the injury and now that the worker is back on partial hours and light duties.
A few questions arise from this scenario. Is it legal for an employer to pay medical and like expenses and wages? Secondly, is it a good or bad thing for the worker and could it cause difficulties at a later date?
Is this approach legal?
This is not to be confused with the employer paying the WorkCover claim excess. Many employers will be required to pay the first $707 (indexed annually) of medical and like expenses of the claim as well as the first 10 days of incapacity, before the WorkCover insurer takes over the claim.
The employer is entitled to pay “gratuitous medical, hospital, nursing, ambulance, personal and household or occupational rehabilitation services” for a worker. That means, yes, it is legal for an employer to pay for medical and like expenses. Sometimes the provision of these services by an employer is done as a genuine gesture of assistance, other times it is part of an attempt to avoid a WorkCover claim or to steer the worker towards a health practitioner who is familiar with the employer.
It’s important to note that it is not legal for an employer to discourage you from making a WorkCover claim if you wish to do so. It is also improper for an employer to force you to see a doctor of their choosing to the exclusion of your own doctor. However, an employer can have you medically examined for the purpose of assessing your capacity for work.
Is it a good or a bad thing for a worker?
In very limited circumstances, it is actually beneficial to a worker to have the employer paying their wages and medical and like expenses outside of the WorkCover scheme. In most cases though, having the claim registered with WorkCover is the better option.
The advantages include:
- The employer may pay you your full wage, where WorkCover will only pay 95% of your average wage, dropping down to 80% after a few months;
- The employer may not require medical certificates every 28 days, which is a requirement under WorkCover;
- You would not be required to attend “Independent Medical Examinations” which is a requirement under WorkCover; and
- You do not have to deal with a WorkCover insurer, which can often be a frustrating process.
The disadvantages are:
- Not making a claim as soon as possible can cause difficulties in having your WorkCover claim accepted later on, particularly if your employment is terminated;
- Your employer could stop paying your medical and like expenses or wages at any time and for any reason, leaving you without any support;
- There may well be no structure put in place for your return to work with an injury;
- If you proceed to a common law claim, you may be criticised for not lodging a WorkCover claim when you knew you had a work-related injury;
- Your employer is unlikely to cover your wages for more than a temporary absence, whereas WorkCover needs to cover you while you can’t return to work, or for at least up to 130 weeks, whichever comes first;
- You may be limited in the type of medical assistance you can seek – an employer may not want to pay for more expensive treatment like surgery or consultations with specialists; and
- If your employer is paying your full wage, they could potentially try and get you to pay back the difference of the 95% or 80% wages they will receive from WorkCover and the 100% they paid you.
The rule of thumb here is: if you find yourself in this situation where your employer is paying your bills for a work-related injury, seek advice from a WorkCover lawyer. They can assess the details of your case and tell you what the best option for you is and you can then make an informed decision.
If you decide to not make a claim and not consult a lawyer, it is essential that the work-related nature of the injury is well documented with both the employer and your doctors. This will help head off any problems later on if anyone wants to suggest that you were never injured at work.
If you are not sure whether you have a claim with WorkCover, you can call WorkSafe Advisory on 1800 136 089 to check, or contact a WorkCover lawyer who will be able to establish whether you have a claim.