Reinstatement of weekly payments
It can be possible to have your weekly payments under the WorkCover scheme reinstated at some point after they have ceased.
This page goes into the circumstances in which you might apply for reinstatement and what you can expect to happen as part of that process.
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Reinstatement after 130 week termination
Weekly payments are often terminated after a worker has received 130 weeks of payments.
The reason for this in simple terms is that the test to be entitled to payments changes from can you do your old job too could you do any job that you have reasonably suited to taking into account your age skills education and so on.
What many people do not realise is that if your capacity at some future point after a 130 week termination is at the point of you not being able to return to any work to which you might be suited to, you can apply for reinstatement of your weekly payments.
An example of this would be 18 months after the 130 week termination takes place, the worker undergoes further surgery for their work related injury.
The surgery does not go well and the worker’s condition deteriorates further. In discussion with their General Practitioner and other specialists it is decided that the worker now has no capacity for any work and will not be able to return to work in the future.
At this point, the worker could apply for reinstatement of their weekly payments.
Reinstatement after ‘full clearance’
As set out on this page, a full clearance certificate can be a misleading concept.
If a worker obtains a full clearance to return to work, it does not mean that their work cover claim is at an end.
It also does not mean that they never have any further entitlement to weekly payments.
It could be that a worker returns to full duties for a period of time and finds that it is not possible for them to perform those full duties without significant pain or it may be that their condition deteriorates as they perform that work.
In those circumstances it is possible for the worker to go back to their doctor and obtain a certificate of capacity that certifies them fit for modified work only or unfit for all duties.
This certificate can be submitted to the employer and the WorkCover insurer for consideration.
What to expect when a request for reinstatement is made and how do you do it?
How you make a request for reinstatement will differ slightly depending upon the circumstances of your claim.
If you have recently started a return to work on full duties and it turns out that you cannot perform those full duties safely and without increased pain, then you would attend on your GP or whoever was providing your certificates to discuss the matter further.
If they agreed that a return on full duties was no longer appropriate they would provide you with a certificate for modified duties only or unfit for all duties.
You would submit this to your employer and to the WorkCover insurer and they would assess your entitlement to weekly payments.
You could expect them to make a decision within a few weeks of the new certificate being submitted, so you do need to take into account that you may not be paid for quite some time and may need to use sick leave or annual leave while that process takes place.
If on the other hand you have been off weekly payments for a number of years and then apply for reinstatement the process will be somewhat different.
You would still need to obtain a medical certificate of capacity from your doctor or treating medical professional however, there is an important factor to consider before sending these certificates off.
What needs to be considered is whether you are going to claim weekly payments from the date that you get this new certificate or some.
In the past we have acted for many injured workers who for one reason or another were not aware that they could claim weekly payments after a 130 week termination and they had a number of years of potential back payment of weekly payments available to them.
So what needs to be considered is whether there is an arguable or good case too not only request reinstatement of payments from the date of the new certificate but also to claim a period of months or years in the past as well.
Beyond this, we have also seen the WorkCover insurer’s struggle to deal with a request for reinstatement of weekly payments in these circumstances.
Typically what occurs is that we provide a letter to the insurer as well as a copy of the certificates or certificates.
The letter sets out why weekly payments are now being claimed and for what period.
Unfortunately what we usually see from the WorkCover insurer when these request is made is that we get no response.
We then have to conciliate the lack of a response or decision from the insurer and typically after that they then consider their position and make a decision.
This may also include arranging for the worker to be medically assessed to assist in determining their capacity and nature of their injuries.
It is quite rare that an insurer will accept a request for reinstatement involving a claim after 130 weeks.
And particularly so if a large period of arrears or back pay is claimed.
In those circumstances a conciliation request needs to be lodged disputing the decision and then the claim can either be resolved by negotiation or be referred to the medical panel or in most cases, proceed to the Magistrates Court for a determination about whether the worker is entitled to weekly payments.
It is possible for a worker to get back onto weekly payments at any point depending upon the strength of the medical evidence to link their incapacity to their work related injury and also looking at whether being capacity will continue long term.
If the request for reinstatement is being made during the course of a return to work process then it is usually something that the worker and their treating health practitioners can handle without lawyers.
On the other hand if the request for reinstatement is being made years after the payments have been lost claimed or terminated, or if the claim includes a large amount of arrears of weekly payments then you are best engaging a lawyer to advise and assist you in making that request to the insurer.