Can I resign while on WorkCover?
Yes, you can. However, you need to be aware that on some occasions your entitlements under the WorkCover scheme (Vic) may be impacted. To ensure they are not, you should make it clear that the reason you are resigning is because of your work related injury (should that be the case).
The relevant law in Victoria states that if you have resigned from your employment for reasons unrelated to your incapacity, then the insurance company can possibly seek to either terminate or reduce your weekly payment
Resigning from your employment does not have any impact on your entitlement to the payment of medical expenses.
Likewise, it will not impact your entitlement to an impairment claim or a claim for common-law damages (both lump sum claim).
If you are intending to resign, and if it is because you feel you are not able, because of your injury or condition, to perform your pre injury role – you should ensure to make it clear that the reason you are resigning is because of your injury or condition.
Whether the injury relates to a physical incapacity, such as a back injury, or a psychological one, such as a condition related to workplace stress, it doesn’t matter. Just make sure to make it clear at the time of resigning.
Can I claim WorkCover after resignation?
Sometimes when a person suffers an injury at work, they may not want to lodge a WorkCover claim at that point in time if they are still employed, for obvious reasons.
They may want to not do anything that jeopardises their job and sometimes, a WorkCover claim can be frowned upon by an employer.
If you resign from your employment, you are able to lodge a WorkCover claim post resignation.
The law in Victoria says that a WorkCover claim should be lodged as soon as possible after the injury occurs (this page explains the different injuries the WorkCover will cover).
However, if you do not do this, it does not mean that you cannot lodge a WorkCover claim down the track and have it accepted.
You could, for example, lodge a WorkCover claim a year or two after the injury happened or the condition developed, even if you didn’t report it to your employer, and potentially have it accepted.
The key thing is what evidence exists to prove that you suffered the injury in connection to your employment, in the way that you say it happened.
So if you did not report the injury to your employer, did you see a doctor or a chiropractor or someone else after the injury and tell them what happened?
Did a workmate witness the injury or did you tell them about it after the fact?
Look at what evidence exists to support your claim. The more good evidence that exists, the more likely your claim is to be accepted.
Lodging your WorkCover claim as soon as possible after an injury occurred is ideal however keep in mind that it is not strictly necessary.
Another thing to keep in mind is that if you wait until after you resign to lodge a WorkCover claim, it is likely that your claim will be scrutinised to see whether you’re lodging the claim because you want to get back at your employer.
Although, as mentioned above, the bottom line is what evidence exists to prove your injury.
If you’re not sure whether you want to go through with lodging a claim, this page might help.
What happens if my claim is accepted?
If your claim is accepted, then you will have an entitlement to the payment of medical and like expenses and potentially weekly payments (if claimed).
Your entitlement will be backdated to the date of injury.
Backdating of your income benefits is explained further here.
So if you have medical expenses that you incurred after the injury but prior to the lodgement of the claim, you should ensure to submit these to the insurer for payment should you wish to be reimbursed.
If you do not have any receipts or proof, consider contacting the provider and asking them to send any documentation relating to any consultations you’ve had with them, to the insurer.
In addition to the payment of medical and like expenses and weekly payments, you will also have an entitlement potentially to an impairment benefit lump sum claim as well as a common-law claim for damages if the injury that you suffered was caused by someone else’s negligence.
What happens if my claim is rejected?
If your claim is rejected, then if you wish to pursue the matter the first step is to lodge a request for conciliation which will initiate the conciliation process.
This page explains what happens at a WorkCover conciliation.
If the matter does not resolve at conciliation, you have two options. The first is to proceed to the Magistrates Court.
The second is to proceed to the medical panel.
There is always a possibility that a claim that is lodged after resignation will be scrutinised for a factual point of view (see the discussion regarding what evidence exists above).
For this reason, if your matter does not resolve it conciliation it is probably more likely to end up at the Magistrates Court rather than the medical panel because the medical panel is not able to deal with factual disputes.
Termination of employment while on workers compensation in Victoria
The law says that employer cannot terminate employees employment because they made a WorkCover claim.
If an employer does terminate a workers employment because they made a WorkCover claim then there are legal avenues which the worker can pursue.
Every employee is entitled to make a WorkCover claim and benefit from protection in the law. This includes ordinary employees, independent contractors, Casual workers and volunteers.
Can I be terminated after 52 weeks of being on WorkCover?
The law states that if you have an accepted WorkCover claim, your employer must offer you suitable work for the first 52 weeks following your injury.
Suitable work may mean working in a different area of the business, working reduced hours, lifting limits or avoiding doing certain tasks which may aggravate your injury.
If after 52 weeks, you are not able to return to the work that you were doing prior to suffering the injury, the employer no longer has an obligation under the law to provide you with any alternative work duties.
It’s usually post 52 weeks that many workers on WorkCover feel the threat of losing their job.
To put in a note that if after 52 weeks your modified duties are withdrawn by your employer, this does not impact on your entitlement to receive weekly payments and regional medical and like expenses. You are still eligible to have these paid.
Can I be sacked after 52 weeks?
You cannot have your position automatically terminated after 52 weeks.
If after 52 weeks the employer no longer has any suitable duties and if the employer wishes to terminate your employment, it must be established that your incapacity for ordinary duties is likely to last.
The employer has the right to have you medically examined when determining what your work capacity is.
Generally what will happen is that your employer will send you and your treating medical practitioner correspondence with a list of questions relating to your capacity to perform the inherent requirements of your job.
It’s also possible that your employer may send you to a doctor for an assessment.
If it is clear that you will not be able to perform your pre-injury role, your employer may seek to terminate your employment.
You may be asked to attend a meeting to wish you were able to bring a support person. Your employer may give you an opportunity to show cause as to why your employer should not terminate your position.
If, on a medical basis however, you are not able to fulfil the inherent requirements of your role, but could perform the inherent requirements of your role with reasonable adjustments, it is against the law for your employer to terminate your employment.
This requires an assessment as to what the essential requirements of your actually are and whether or not you are able trying to take those requirements.