Can WorkCover stop payments?
Yes, there are a number of different times where WorkCover can stop your weekly payments. These are:
- If you make a return to full unrestricted work
- Reaching the end of the second entitlement period
- Non compliance
- If the injury is no longer materially contributed to by your employment
- Where there is no valid certificate of capacity
- Termination due to serious misconduct.
It’s important to know that in each of these instances the WorkCover insurer is required to give you written reasons as to why your payments have stopped as well as provide you with a number of weeks notice that will allow you to make alternative arrangements for income support once the termination comes into effect.
For most people this means contacting Centrelink and notifying them of the date of your weekly payments cease so that a Centrelink payment can commence immediately after that date.
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If the WorkCover insurer is satisfied that you have engaged in fraud that would disentitle you to weekly payments, then termination of your payments can take affect immediately.
The most common example found for fraud is where someone is declaring that they are not working when they are in fact working.
On each WorkCover certificate that a person completes and sends to their WorkCover insurer they must declare whether they are working or not,
They must also list the number of hours they are working.
If someone declares that they are not working when in fact they are, if the insurer determines that that they’ve been fraudulent, then their payments will cease immediately.
There are also significant financial penalties that a worker who has made a false declaration may have to pay.
When someone makes a full return to work
If a worker recovers from an injury to the extent that the injury no longer exists or causes no impact upon their work capacity, then they are no longer entitled to receive weekly payments.
As an example, Mary sustained an injury to her knee whilst working as a nurse. No surgery was required for the injury but in the first six weeks after the injury was sustained, she had difficulty walking up and down stairs.
In the facility that she worked in, this meant that she would not be able to access certain areas of the buildings. It would also mean that she would be restricted in her ability to lift and deal with patients.
During that period of time her capacity would be considered to be “fit for modified duties” only.
After the first six weeks her knee felt better and her general practitioner felt that she was ready to return to full duties.
A WorkCover certificate of capacity was issued by her doctor stating that she would be fit for full duties in one weeks’ time (sometimes people refer to these certificates as fit to work certificates).
At that point, the WorkCover insurer terminated her entitlement to weekly payments.
Reaching the end of the second entitlement period
When a worker has received 130 weeks of weekly payments it is likely that their entitlement to weekly payments will cease.
The reason for this is that the test for entitlement to weekly payments changes significantly at the 130 week mark.
Prior to 130 week mark, you need only show that you are not fit for full duties in your pre-injury job.
Once you are post 130 weeks the test changes in that you are then required to show that you are not fit for ANY job, given your education, training or experience.
It is of course possible to challenge these types of decisions and be successful in doing so.
It is generally only in the most catastrophic injury cases that the insurer does not terminate weekly payments at this point.
The topic of 130 weeks is explored further in this article.
Payments may be suspended for a period of time or even terminated if the worker does not comply with the reasonable requirements of the insurer.
This generally occurs when a worker will not return phone calls or correspondence from the WorkCover insurer over a period of time, does not attend medical assessments arranged by the WorkCover insurer or does not appropriately engage in return to work or rehabilitation programs arranged by the insurer.
There can certainly be arguments about whether reasonable attempts have been made to comply with a WorkCover insurers request.
It is often a situation where a lawyer with experience with these types of decisions need to assess the situation and advise on whether there is a good prospect of beating the decision.
Caution is recommended when dealing with a WorkCover insurer and their requests for you to participate in rehabilitation or return to work programs.
Even if you believe their request may not be entirely reasonable, you do need to remember that they have the power to suspend or terminate your weekly payments and as such you do not want to put yourself at risk of that occurring.
That the injury is no longer materially contributed to by the workplace incident
This is a reason most commonly cited in back injury claims, particularly where there has been a preexisting back injury.
In those instances, the WorkCover insurer may find a doctor that says that the workplace aggravation of the injury has now ceased and any residual incapacity for work is caused by the pre-existing injury.
These types of opinions and decisions really stand up to closer scrutiny and as such are usually overturned when challenged.
Reasons that would mean you normally would not be entitled to weekly payments
In some instances, a claim is initially accepted but at a later time the WorkCover insurer finds out further information or changes their mind about the decision.
For example a claim may be accepted and then new information comes to light which causes the insurer to change their mind.
Here are the examples of where this can occur:
• The workers employment was not connected with the State of Victoria
• The worker was not a worker within the meaning of the legislation
• The injury did not arise out of or in the course of employment
• The worker did not suffer any injury
• The worker suffered an injury that was mental in nature and related to circumstances which would exclude them from compensation under the legislation
• The workers employment was not a significant contributing factor to the injury as required by the legislation
• The injury was self-inflicted or due to serious and wilful misconduct
• The worker made a false or misleading disclosure
• The worker has failed to disclose a pre-existing condition at the time of employment if requested in writing by the employer to do so
• The injury was caused by a transport accident and the worker has been convicted or found guilty of a serious road traffic offence for the driving of the vehicle.
When the worker moves to another state or overseas
There is the ability to continue to receive weekly payments if a worker moves interstate or overseas.
However, if the worker does not notify the insurer of the move and does not continue to obtain valid certificate, then their entitlement would cease.
When the worker dies
If a worker dies while still entitled to weekly payments, the dependants of the worker are not entitled to the worker’s weekly payments, though there may be other payments available to dependants if the death was caused or contributed to by the work injury.
When no certificates, or no valid certificates are provided
Weekly payments are contingent or certificates being provided. If a worker does not provide certificates of capacity to the insurer, they will not be paid.
Further, if you only provide general “sick certificates” or if the proper WorkCover certificate is not completed properly, then there is no entitlement to weekly payments.
The worker resigns their employment for reasons unrelated to their work injury
For example, if a worker quit their job because they decided to move interstate, or because they did not like their boss, or because they no longer wanted to work there, then the insurer could terminate their payments.
If a worker resigns because the injury makes it impossible for them to do their job then they should remain entitled to weekly payments. This is always a tricky area and caution is required.
When considering resignation it is always best in those situations to obtain legal advice and have the lawyer assist in preparing the letter of resignation. Never let an employer force you into resigning your position without first seeking legal advice.
Termination of employment due to serious misconduct
If a worker is in receipt of WorkCover payments and the business they are employed by goes bust or their employment is terminated due to a mass termination of staff then there will be no affect on the workers entitlement to weekly payments.
However, if the workout engages in serious misconduct at work then any top up WorkCover payments they are receiving would be terminated.
For example, if you were to steal significant amounts of money from your employer and your termination was based on that, then the WorkCover insurer would be entitled to cease your payments as of the date of termination.
If you are sentenced to a term of imprisonment while in receipt of WorkCover payments, your entitlement while cease while you serve the prison term.
When the worker has a full capacity for work – just not at the pre-injury employer.
Most often seen in psychological injury cases, this occurs when a worker is deemed unfit to work with the pre-injury employer, but could work full duties at a similar employer elsewhere.
There are many examples of this, but often are related to bullying or personality clashes between staff.
If a worker has been bullied but time away from the workplace has improved their mental health significantly, they might be considered fit to work at other workplaces, just not at the workplace the bully works at.