Working while on WorkCover (Vic)

Many people believe that if you have a WorkCover claim, you are not able to work.

And that if you do work while on WorkCover, your claim is finalised.

This is not correct.

You are able to work while on WorkCover, whether that be in the job that you were doing prior to the injury, or a new job or even in a second job.

This page will explore things further.

When can you work?

If you have an accepted WorkCover claim, and if you’ve not required any time off work because of the injury and have not been claiming weekly payments then you’re able to continue working.

Just because you have a WorkCover claim on foot, does not mean that you can’t work.

If you have an accepted WorkCover claim and you are in receipt of weekly payments because you have been off work due to the injury, in order to return to work you will need to have a certificate of capacity that certifies you as having some work capacity.

Whether that means that you are certified as being fit to work modified duties or certified fit to work full duties.

Modified duties may mean that instead of working in a role that requires, for example, manual lifting, you instead do administration work or other lighter duties.

Or it may mean that instead of working 38 hours a week, you work 10 hours and gradually work to increase your hours and try to get back to full time hours.

Or it may mean that you avoid lifting anything over a certain weight.

If your doctor certifies you as having a capacity for full unrestricted duties, this means that your doctor believes you can return to your pre injury role.

So the bottom line is this: you can work while you have a WorkCover claim on foot. But if you have been off work and want to return to work while on WorkCover, you should have certificates of capacity certifying you as fit to return to work.

Certificate declaration

On a certificate of capacity, at the bottom of the second page there is a box that you need to tick indicating whether you’ve worked or not during the period of time that the certificate covers.

It is under section 7 on the certificate and states:

“at any time since the last certificate of capacity was provided have you engaged in voluntary work or any form of employment or self employment which you have received been entitled to receive payment in money or otherwise”

So if you have been working while on WorkCover, whether you’ve partially returned to work or returned to work on full hours, and even if you’ve been doing voluntary work, you need to ensure that you declare that you’ve been working on your certificates. This is very important.

What impact can working have on a WorkCover claim?

Returning to work does not stop your WorkCover claim as many people seem to believe.

You are still entitled to the payment of medical and like expenses.

Obviously if you return to work and you are working full time hours and duties you are not entitled to the payment of weekly payments.

However, if you are only able to return for a limited amount of hours, you are entitled to be paid weekly payments taking into account the hours that you are not able to work.

In some cases you also might be able to obtain make up pay if you are covered by an EBA or similar. You can read about make up pay here.

This is not the norm though and in most cases you’ll not be entitled to be paid 100% of your wage.

You can read about that here.

If you have returned to work you are still entitled to pursue an impairment benefit claim which is a lump sum claim where you can be compensated if you are left with permanent impairment.

There does not need to be negligence on behalf of the employer for you to pursue this claim.

Returning to work will not impact your entitlement to claim and it will not impact what you are entitled to.

The final entitlement under a WorkCover claim is a common law claim which is another lump sum claim.

Returning to work can impact a common law claim.

The main way that it can impact a common law claim is in relation to claiming economic loss or loss of earnings.

There are two things that you can be compensated for under a common law claim.

The first is for pain and suffering in the second is for loss of earnings.

Not everyone is entitled to claim loss of earnings under a common law claim even if they have loss of earnings because of an injury.

In most cases people need to satisfy what’s called the 40% loss of earnings test.

This means that as a consequence of the injury they have lost 40% of their earning capacity.

You can read more about loss of earnings here.

So to illustrate this, let’s say that someone was earning $2000 a week, week in week out before the injury happened.

They would need to show that as a consequence of the injury, there is no job out there that they could do where they would earn $1200 or more dollars per week.

That is, that they have lost 40% of their earning capacity.

So if a person was to return to work and cross that 40% threshold and continue to work to same or greater extent, then it is unlikely that they’re going to be entitled to the payment of economic loss damages.

What about working elsewhere?

You are able to leave your employment with the employer with which you suffered an injury and move to new employment if you have a WorkCover claim.

You do not need to stay with the same employer while your claim is on foot.

However, in some cases this can impact on your entitlement to the payment of weekly payments.

You should read about that here if you are thinking of leaving an employer and moving to a new one.

What about working elsewhere at the same time?

In some cases a person might have two jobs at the time of the work injury.

So say for example all up they were working 40 hours a week but it was spread between two jobs.

With job A they were working 20 hours a week and with job B they were working 20 hours a week.

Let’s say that they suffered an injury with job A and that they are not able to return to that job at all because of the injury.

Are they able to continue working job B?

This is a medical question.

So let’s say that the injury is a psychological one where the person was assaulted in job A and now feels they can’t work in customer service roles.

The doctor would be able to certify that they are not able to return to job A or similar roles given the assault, but may be able to work full time hours in relation to job B, which didn’t involve direct contact with customers.

The person may be able to claim weekly payments based on their job A earnings while continuing to work in job B. 

Another scenario is where a person has a physical injury and both jobs require manual handling.

The GP may certify that a person cannot work at all.

In this case, because the person would not be able to work, from a medical point of view either job unfortunately they would only be entitled to claim WorkCover weekly payments based on the hours they were working in job A. They would therefore lose their income under job B. 

This can be a complicated area so if this applies to you and you have been working multiple jobs and want to know be in pact that a WorkCover claim may have, then you should seek legal advice.

Conclusion

You are able to work when you have a WorkCover claim on foot in Victoria.

However, you need to be certified as having a work capacity before you can return to work. Whether the work capacity be for partial, modified or light duties or whether it be that you are certified fit for full duties.

Returning to work while on WorkCover will not impact the payment of medical expenses but will obviously impact the payment of weekly payments, depending upon the extent that you have returned to work.

In terms of any impact on lump sum compensation, returning to work will not impact the payment of an impairment benefit lump sum but may have an impact on your ability to claim loss of earnings under a common law claim.

In a situation where you have multiple jobs at the time of injury, this can be somewhat complicated and you should obtain legal advice in relation to your entitlements in this regard.