What happens to my WorkCover entitlements if I go overseas?

We have represented many injured workers in accessing their entitlements under the Victorian WorkCover scheme. Some of the workers we represent are migrants. They often ask whether their WorkCover entitlements will be affected if they leave Australia and return overseas. The short answer is, yes, entitlements will be affected. The next question comes, how are the WorkCover entitlements affected?

In this article, we look at what you need to know when going overseas, either permanently or temporarily, in relation to the following WorkCover entitlements:

• WorkCover weekly payments;
• WorkCover medical and like expenses;
• WorkCover impairment claims (lump sum claims); and
• WorkCover common law claims where there was negligence.

The general rule is that you would not be entitled to claim ongoing weekly payments if you cease to reside in Australia unless you satisfy the WorkCover insurer that you have “no current work capacity” and that you are likely to have no current work capacity indefinitely.

In order to do this, it is recommended that, at a minimum of 8 weeks prior to departing Australia, you:

1. 1. notify the WorkCover insurer of your intention to permanently leave Australia;
   2. arrange an appointment with your medical doctor to discuss your capacity for work and medical treatment requirements;
   3. seek pre-approval from the WorkCover insurer for medical treatment requirements that you will need overseas;
   4. obtain certificate of capacity for the 28-day period leading up to your departure; and
   5. provide the WorkCover insurer with the details of your overseas doctor.

Once you have notified the WorkCover insurer, they will need to review your entitlements. They may require you to attend an independent medical examiner to assess your capacity for work and/or your medical treatment requirements. This may take time and may require you to remain in Australia until the conclusion of the review.

If the WorkCover insurer is satisfied that you have no current work capacity and that your incapacity is likely to continue indefinitely, you will be entitled to receiving ongoing weekly payments whilst you are overseas. This will be regularly reviewed by the insurer every few months or so.

You should maintain regular contact with the insurer, and you will be required to provide ongoing certificates of capacity in the prescribed form from your overseas doctor. If you provide invalid certificates of capacity, this will not be accepted and will cause delays to your payments.

If the WorkCover insurer is not satisfied that you have no current work capacity and that your incapacity is unlikely to continue indefinitely, you can challenge this decision at the Accident Compensation Conciliation Service, now known as the Workplace Injury Commission.

You can still apply for your weekly payments and medical expenses whilst you are overseas.

If the WorkCover insurer requires you to attend an independent medical examiner in Australia to assess your weekly payments claim and for medical expenses request, they will be required to pay for your travel and accommodation.

You should provide any medical evidence and supporting documents for your weekly payments claim and medical expenses, to the WorkCover insurer. It’s important that any medical certificates submitted are a “WorkCover certificate of capacity” using the prescribed form.

You must be aware that this process may be delayed and if you provide evidence that is in a language other than English you will need to provide a certified translation of the documentation before the WorkCover insurer can consider it.

The WorkCover insurer should have your Australian bank details in order to process any payments to you.

If you no longer bank with an Australian bank and have had to move your funds to an overseas bank, you should provide the WorkCover insurer with your new bank details.

You should note that there may be tax implications with your weekly payments when you become a non-resident of Australia. You should consider speaking with your accountant or financial advisor about this before you move overseas.

Before you leave Australia, it is recommended that you seek approval from the WorkCover insurer as to the medical expenses that you are approved to claim whilst overseas. This initial authorisation is necessary for you to be able to claim medical expenses you incur overseas, without delay.

If you have already left Australia and require the treatment without having sought this initial authorisation, you must notify the WorkCover insurer as soon as you become aware of the treatment you require.

The WorkCover insurer then must review your entitlements and provide a response to your requested treatment. Within 28 days of receiving your request, the WorkCover insurer should advise you whether they will be:

• • accepting the request;
  • rejecting the request;
  • arranging an independent medical examiner; or
  • seeking more information by requesting further medical information from your doctors or arranging a clinical panel to review the request.

The WorkCover insurer must be satisfied that the medical treatment sought is reasonable and necessary for your recovery.

This process can take months and if you require the medical treatment urgently, you may choose to self-fund and seek a reimbursement from the WorkCover insurer after the review has been finalised and approved.

It is recommended that you keep copies of any receipts or invoices for expenses that you incur from your medical treatment so that you can seek reimbursement from the WorkCover insurer once you have received the approval.

You should be aware that it is likely you will receive a reimbursement in Australian dollars rather than the currency of the country that you reside in. You may not be able to recover the full cost of the treatment.

Additionally, the WorkCover authority has a schedule of fees for the maximum amount payable for different medical expenses. You should be aware of this and notify your overseas doctors. You can access a copy of the schedule of fees here.

Yes.

If you are temporarily absent from Australia for a holiday or an extended break, your entitlements remain unchanged.

Unlike leaving Australia permanently, you do not need to satisfy the WorkCover insurer that you are indefinitely unable to return to work.

You should still continue to receive weekly payments provided you continue to provide valid certificates of capacity and the insurer should continue to fund your medical expenses provided you have initial approval from the WorkCover insurer.

You will need to obtain a certificate of capacity to cover the time that you are away.

A certificate of capacity is only valid if it covers a maximum 28-days period. You must obtain a certificate of capacity for 28 days from your doctor before you leave Australia and obtain additional certificates by an overseas practitioner when you are overseas. You need to ensure your overseas doctor provides a WorkCover certificate of capacity in the prescribed format; a general certificate will not be valid.

It’s important to note that there is a policy where you cannot arrange telehealth appointments with your GP or other treating doctors in Australia for the purposes of a certificate of capacity when you are overseas.

In some circumstances, the 28-day time limit may be extended by the WorkCover insurer. You should address this with the WorkCover insurer before you travel and explain your circumstances in why you believe you require special consideration for the 28-day time limit extension. For example, whether you will be rural areas where there is limited access to doctors.

Yes.

Unlike weekly payments and medical expenses, there is no requirement to seek approval by the insurer before you can make a lump sum claim for permanent impairment, regardless of whether you reside in Australia or not.

If you have left Australia permanently, you are still entitled to claim:

• • an impairment benefit (lump sum compensation); and
  • common law damages.

You must still satisfy the requisite criteria to be entitled to an impairment benefit and a common law claim separately.

For an impairment benefit claim, you may be required to attend an independent medical examiner. If you are required to see an examiner in Australia, the insurer should fund your travel and accommodation expenses provided there are no alternatives that are closer to you. In an impairment benefit claim, an examiner must be qualified in providing an assessment under the American Medical Association guidelines 4th edition (AMA Guides). Examiners qualified in providing these assessments are mainly based in the US and Australia. Some examiners travel to the UK, but this is very uncommon.

For a common law claim, you must be granted a serious injury certificate to be entitled to claim compensation. For the purposes of assessing your serious injury application, you may be required to attend independent medical examiners. If the WorkCover authority arranges this, they should fund your travel and accommodation similar to the impairment benefit claim.

Further, it is more likely that you will be required to attend court for a common law claim in circumstances where your serious injury application is rejected or liability is contested. If that is the case, you would be required to come to Australia for this court hearing.

Since the COVID pandemic, the courts have been more flexible in offering video link for witnesses, however this is only provided in exceptional circumstances and there is an ongoing preference for in-person court hearings particularly where you are the subject of the claim. If you are required to appear at court, it is unlikely you will be entitled to any reimbursement or funding for your travel and accommodation.

If the WorkCover insurer does not accept that you have an indefinite incapacity to return to work for the purposes of receiving a weekly payment, you will not be entitled to receive weekly payments after you leave Australia.

You can challenge the decision of the insurer to reject your weekly payments request to the Workplace Injury Commission for conciliation, within 60 days of that decision.

You will need to obtain medical evidence to prove your incapacity for work and this process may require you to remain in Australia until it has resolved. You will need to be accessible via telephone and/or email.

If you are planning to move overseas or planning a long-term holiday overseas, we encourage you to ensure that you have notified the WorkCover insurer immediately. The process of seeking approval will take time. The longer you leave it, the more difficult it will be to access your entitlements whilst overseas.

If you would like some legal advice about your options and your entitlements, please don’t hesitate to contact Polaris lawyers and we would be more than happy to assist you with your case.