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I’m unable to work due to an injury – what are my rights?


Beyond just a nest egg for retirement, many superannuation products provide vital disability insurance to the account holder. These insurances are designed to protect you if you have sustained an injury and are unable to work for more than three months.

If this sounds like you, and you have suffered an injury (including orthopedic injuries to your neck or back), you may be eligible for a compensation claim through your super fund.

Here we explain what happens if you are unable to work due to injury, what entitlements you may be eligible for from your super fund, and how the Super and Insurance team at Shine Lawyers can help.

What happens if I’m unable to work due to injury?

We've seen firsthand how our clients’ ability to work can be severely impacted by injuries, especially back injuries, suffered due to causes like:

  • lifting or carrying heavy objects
  • falling from a height
  • slips and trips
  • faulty goods
  • road accidents.

Serious and prolonged back pain which prevents the sufferer from working is likely to cause the sufferer and their family's financial hardship.

If you’ve been off work for at least three months due to your condition, you may be able to access financial support through your superannuation insurance. Many super products contain Total and Permanent Disability insurance, which entitles you to a payment if you suffer an injury or illness that prevents or limits your ability to work.

If you’re experiencing back pain day-to-day, make sure you speak to your doctor about your condition and are following their treatment recommendations.

Can you lose your job due to injury?

Workers are protected from termination if they are away from work temporarily due to sickness or injury. You cannot be fired for taking the paid sick leave you’ve accrued.

However, if you’ve taken more than three months of sick leave, or more than three months in a year period, and at least part of that sick leave was unpaid, you are no longer protected.

For more information on employment rights, visit the Fair Work page on long periods of sick leave.

What benefits can I get if I’m unable to work?

Your benefits and entitlements will depend on factors such as how you sustained your injury, how severe the injury is, and your personal circumstances. If you’ve suffered a work-related injury, you will generally be eligible for workers’ compensation as well as a super claim – visit our Workers’ Compensation webpage for more information on your entitlements.

What is insurance through my super?

When it comes to super claims, there are several common insurances bundled with super products.

The three main types of insurance included with super are:

  • Total and permanent disability (TPD): If an injury or illness leaves you permanently unable to work your usual job, TPD insurance will provide a lump sum payout.
  • Terminal illness or death cover (life insurance): If you are terminally ill or pass away, death cover will provide a lump sum payment to you or your beneficiaries, usually family members.
  • Income protection: if you are unable to work your usual job, income protection will be paid to you for an agreed period (two years, five years, or until you turn 65).

Our client Dudley attempted to make a TPD claim through his superannuation fund, after suffering a career-ending stroke that left him unable to work. When making his TPD claim, Dudley was knocked back by the insurer at every turn.

Watch Dudley’s story to learn how we were able to successfully secure his TPD claim and help him get his life back on track:

I’m self-employed and unable to work due to injury – what are my rights?

If you are unable to work due to injury or illness, you may still be able to make a super claim if you are self-employed – it depends on whether you have a superannuation account and the relevant insurance.

Our tip: If you aren’t sure what insurance your super contains, you can review your account online or contact your super fund for clarification.

How Shine Lawyers can help with your super claim

If you intend to make a legal claim, it’s important to seek legal advice from the Shine Lawyers Super and Insurance team as soon as possible, as the claim process won’t begin until your claim is lodged.

Our team of expert superannuation and insurance lawyers have a proven record securing life-changing results for our clients.

Our goal is to make the claim process as a simple as possible so you can gain access to the full range of benefits you’re entitled to and get your life back on track.

Start your claim today by using our online claim checker below, or arrange a free phone or in-person consult with one of our experts.

iconCheck if you have a claim online.

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Written by Shine Lawyers. Last modified: January 24, 2022.

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