My employer wants me to use sick leave instead of making a claim. What should I do?

My employer wants me to use sick leave instead of making a claim. What should I do?

My employer wants me to use sick leave instead of making a claim

Being unable to work because of a work injury is stressful enough, without your employer complicating matters. It can be a very confusing time, especially if your employer is being difficult and you have never dealt with the workers’ compensation system before. You need to know your rights and how the system works.

Employers may not want you to lodge a workers’ compensation claim for a variety of reasons. Some worry that your claim may increase their workers’ compensation insurance premium or, even worse, some may not have a policy for workers’ compensation insurance at all.

If you find yourself in the situation where you need time off work to recover from a work-related injury, and your employer wants you to use your sick leave instead of making a workers’ compensation claim, please know that you do not need to do this and that it is not a good idea.  Here’s why:

  • Keep your sick leave for a rainy day. In NSW, once the workers’ compensation insurer is notified of your claim, the insurer must start paying you weekly benefits for lost wages within 7 days (unless there’s a special reason why they can’t). This is called “provisional liability”.  You can receive payments under provisional liability for up to 12 weeks while the insurer investigates your claim, and in the process, your sick leave remains untouched, available for you to use for the proper reasons – colds, flus, sick kids etc.
  • Under a worker’s compensation claim, the insurer will also pay your hospital, medical and treatment expenses. While your employer may be happy for you to take time off and use up your personal sick leave, and might agree to cover your GP or physiotherapy fees, they may not be prepared to pay your proper medical and treatment expenses.  Under the NSW workers’ compensation scheme, not only are you eligible for weekly payments for lost wages, but you’re also eligible for payment of your hospital, medical and treatment expenses. These types of expenses can really add up fast, and when you’re not working and running down your personal leave, that is a tough situation to be in. Avoid it by lodging a workers compensation claim.
  • Your injury could be more serious than you think. It may turn out that what you thought was a minor injury is much more serious and you need longer off work than you originally thought, as well as extensive medical treatment.  Say, for example, you thought that you suffered a temporary back strain at work, but it turns out that you have a ruptured a disc and need disc replacement surgery.  It’s times like these that you need to be covered.
  • Your employer doesn’t need to have a workers’ compensation policy for you to be covered by the NSW workers’ compensation scheme. In NSW, the Nominal Insurer accepts workers’ compensation claims from workers whose employers don’t have workers’ compensation insurance.  You will have the same entitlements as workers whose employers pay their insurance premiums.  Ask your lawyer about this.  In other words, you don’t need to worry about being covered.  Your uninsured employer however will have to worry a lot about their failure to obtain insurance for employees like you, and given that it’s a legal requirement, that’s fair.
  • There may be other types of compensation available to you. You may, for example, be eligible for lump sum compensation if you suffer a permanent impairment because of your injury of greater than 10%.  If it turns out that you have a permanent impairment of 15% or more and your employer’s negligence caused your injury, you may be entitled to work injury damages to compensate you for your economic loss.

As you can see, there are lots of reasons why you should lodge a workers’ compensation claim.  Your employer might have a short-term hike in their insurance premium because of your injury, but you could lose out on a whole lot more, not just your sick leave entitlements. It is in your interests to protect yourself.

Here’s what you need to do to claim workers’ compensation:

  • You need to see your General Practitioner about your injury and ask them to complete a SIRA Certificate of Capacity. Your General Practitioner will be familiar with this form.  The certificate confirms that you were injured at work, your diagnosis, and that you are currently unable to work.  If you are unable to work your usual hours because of your injury, you will be eligible to claim weekly payments while you are off work and you can save your sick leave for other medical and personal emergencies.
  • Once you have your Certificate of Capacity, you should keep a copy for yourself (you may need it) and give your employer the certificate. Tell your employer that you do not wish to use your sick leave and that they need to notify their workers’ compensation insurer about your claim.  Your employer should notify the injury themselves, but if you have not been contacted by the workers’ compensation insurer within 7 days, you should notify the injury to iCare as follows:

If your employer is uninsured, you can notify your injury yourself to iCare as follows:

You can also lodge a workers’ compensation claim via iCare’s website which is:

If you are having difficulty with your employer or you’re unsure about your workers’ compensation rights, seek advice from an experienced workers’ compensation lawyer.  You need to find a lawyer who is approved by the Independent Review Office (IRO) to help you with your workers’ compensation claim.

At Bourke Legal, all our lawyers are IRO Approved Lawyers which means that we can apply for IRO funding to pay your legal costs and disbursements.  One less thing for you to worry about.  Contact us at or call 1300 230 937.