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Working with chronic pain – what are my rights?

Most of us probably think that pain resulting from an injury or illness will be resolved after accessing medical treatment or once the injury has healed. Unfortunately, this is not the case for many people who suffer an ongoing type of pain called chronic pain.

What is chronic pain?

Pain is like the body’s alarm system, letting you know when something is wrong and needs to be addressed. There are two types of pain: acute pain and chronic pain. Acute pain is usually temporary and associated with damage to the body, like an injury or illness. This type of pain will generally go away after the body has healed.

Chronic pain, or persistent pain, lasts longer; generally past the amount of time you would expect an injury to heal, and for some sufferers can be a lifelong struggle. The pain doesn’t always indicate ongoing damage to an individual’s body, instead being more to do with what is happening in their nervous system, which can become overactive and continue to make the individual feel pain even when there is no ongoing tissue damage. Understandably this can have a detrimental impact on the individual’s quality of life and their ability to work.

It is estimated that 1 in 3 Australians are living with chronic pain. Approximately 68% are of a working age, with their pain restricting what activities they can undertake and the work they can do.

What if I can’t physically do my job anymore?

  1. If you have been injured or think your chronic pain is impacting your ability to do your job, the first step is always to go and see your doctor and provide them with a history of what has happened. Make sure that you accurately report to your doctor how you are feeling when working with chronic pain and do not downplay your symptoms.
  2. Your doctor will provide you with a certificate of capacity which contains information to help you, your employer, health providers and insurers work together to help you get back to work as quickly and safely as possible.
  3. If you haven’t already reported or lodged a workers compensation claim for your injury, do so.
  4. Communicate clearly with your employer to make sure they understand the extent of your condition, the time off you require (as recommended by your healthcare provider/s) and work with them to plan out your return to work. Your employer has an obligation to carry out a return to work assessment and plan, but it is up to you to do all that is reasonable to return to work.

Tips for returning to work after injury

It can be daunting to return to work after an injury or after you’ve been recognised to have a reduced capacity due to chronic pain. Here are some tips to help make the transition easier:

  • You may return to work with lighter duties or restrictions based on the certificate of capacity that your doctor provided. Ensure you are familiar with this document and your limitations when working with chronic pain.
  • You are not expected to return to work in the same capacity, so be cautious not to push yourself too hard in case you risk reinjuring yourself or make your chronic pain worse.
  • It is essential to reassess your restrictions along the way. If your work is causing flare ups of pain, talk to your doctor about a change in your restrictions and report this to your employer.
  • A lot of people get intimidated/bullied by their employer to take on more or return sooner. Make sure that this is reported to the workers compensation body or your lawyer.
  • Keep in touch with your doctor and report in detail on how you’re progressing, even if a significant amount of time has passed since being injured or diagnosed with chronic pain.

If you are being pushed to do work that is outside your certificate of capacity:

  1. Ask your employer to put their request in writing, detailing the work they are requesting you to perform.
  2. Immediately contact your doctor and advise them – they will either confirm that you are unable to perform those specific duties or may be able to issue you with a new certificate of capacity if your condition has improved.
  3. Contact a workers compensation lawyer, as they will be able to advise you of your rights and advocate on your behalf.
  4. Contact your case manager at your workers compensation insurer.

You cannot be terminated for non-compliance if you are acting in compliance with your certificate of capacity.

What if I can’t return to work for a long period, or at all?

Under common law, if you suffer an injury or illness, your employment is protected for 52 weeks (1 year). Your employer is obliged to hold your pre-injury role or a similar position that provides the same rights and entitlements.

If it becomes apparent that you are not going to be able to return to work at all or in the same role, you should seek legal advice about what your rights are under the workers compensation scheme in your state.

In this situation, the insurer has an obligation to help you find a different or altered role with your employer. Or, if there isn’t suitable employment available with your current employer, they are responsible for helping with your retraining, occupational rehabilitation and job seeking to assist you in finding a more suitable position.

Shine Lawyers – we’re here to help

If you are suffering chronic pain as a result of a workplace injury and are unable to work or have to work at a reduced capacity, you may have a claim for compensation. Our expert workers compensation lawyers can help you to understand your rights and assist with your workers compensation claim on a No Win, No Fee basis. Contact us today for an obligation-free appointment.


Written by Shine Lawyers. Last modified: July 22, 2020.

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