Further to “Jax” question asking whether work (or workcover) is liable to pay his weekly payments, now that he has resigned from his job, we trolled our books and the web to find an answer, with an explanation. Well, ahum, the “bad’ news is that resigning from your job with your pre-injury employer “for reasons unrelated to your work related injury” is considered a “breach of mutuality”. This basically means that you are not making yourself “ready, willing and able” to perform any suitable duties offered by your employer. As a consequence, you may not be entitled to receive any further weekly payments!
Can I resign when I am on workcover?
In general Resigning when on workcover is not a good a idea
If, for example, you resign from your job with your pre-injury employer because you just can’t stand it anymore and want to accept a new job, then you would be breaching your obligation to perform suitable duties with your pre-injury employer.
Also, if the new job pays less than Average Weekly Earning’s you will not be entitled to receive any “top up” payments.
However, if you have ongoing restrictions and you resign from your pre-injury employment as a result of your injuries and disabilities and start a new job with a different employer that is suitable but pays less than your Average Weekly Earnings, then you may be entitled to be paid “top up” payments by the workers compensation insurer.
We also found out that the legislation is slightly different in each state
For example in South Australia, If you are not able to maintain the new job as a result of your injury, then you could bring a further claim for income maintenance/ weekly pay if you “restore mutuality” with your pre-injury employer. As in SA the employer where you were injured has to continue to provide you with suitable duties forever (unless you resign), unlike in Victoria where the employer has only 12 months duty of care after an injury.
In South Australia, you can try to do this by demonstrating that you are ready, willing and able to return to work and carry out suitable duties with your pre-injury employer. This can be done by presenting a WorkCover Medical Certificate and a new claim form to your pre-injury employer and asking them to provide you with suitable duties. However, your previous employer may not take you back. If they refuse to take you back, this could result in your claim being rejected and if this happens, make sure you seek legal advice from an experienced WorkCover solicitor.
Other workcover benefits
Even if you were to resign and obtained alternate, perhaps a more suitable job elsewhere and give up your entitlement to weekly payments, you are still entitled to have any reasonably incurred medical expenses paid for by the workcover insurer. This entitlement continues indefinitely in some states [or until you agree to accept a lump sum redeeming those entitlements in some states, such as in SA]
ENDING WEEKLY PAYMENTS
The Workers Rehabilitation and Compensation Act strictly controls the circumstances in which the insurer can stop your weekly payments. In most cases WorkCover must give 21 days notice and in all cases they must give you written notice setting out your right to dispute the decision.
According to Aussie Legal, weekly payments of compensation can only stop if:
- You agree.
- You resign your job with the employer.
- You are no longer incapacitated for work.
- You do not have a medical examination or provide a medical certificate when asked.
- You have returned to work (not just for a trial or rehabilitation).
- You refuse to undergo treatment or rehabilitation programmes in certain circumstances.
- You leave Australia without giving appropriate notice.
- You have a permanent disability and incapacity and you agree with WorkCover for a lump sum payment.
- You go to live interstate,without getting permission from Workcover.
- WorkCover successfully apply the two year review provision – the two year review provision is a complicated changing area of Workers Compensation law. In summary, after two years of incapacity, the insurer can assess your ongoing entitlement to weekly payments by deducting wages you could earn (not the wages you are necessarily earning) in suitable employment. This is a complex and developing area of Workers Compensation law and you should seek detailed legal advice on your entitlements.
- What if an injured worker resigns in the heat of the moment?
- Injured worker resigned but employer remained liable for workers compensation