If you are on WorkCover and unable to return to any work as a result of your workplace injury, your employer is required to hold your position open for 52 weeks. The employer’s obligation doesn’t necessarily start from the date of your injury but rather, from the date you provide the employer with your first certificate of capacity to start claiming weekly payments.
You are entitled to up to a total of 130 weeks of weekly payments if you are unable to return to your pre-injury work due to your workplace injury. For more information on weekly payments, please visit this WorkSafe Victoria page.
If I recover from my injuries during the 52 week period, can I return to my normal work?
As long as your medical treaters (often your treating GP) certify that they’re satisfied you have recovered well enough to resume your normal work duties and hours, the employer is obligated to give you your previous role or the equivalent. However, the employer’s obligation applies only if it is reasonable for the employer to meet this obligation.
For example, if the employer undergoes a genuine downsizing of their business or sells their business (whilst you are off work due to your workplace injury), the above obligation on the employer would be unreasonable. If this happens to your employer and your employment is terminated, you must notify the WorkCover agent.
Your entitlement to weekly payments will remain but the agent will refer you to occupational rehabilitation programs through ‘New Employer Services’ (NES). The services provided by NES are varied and can range from:
- assisting you with updating your resume;
- arranging a case conference with your treating GP to discuss and formulate a return-to-work plan; to
- referring you to a job seeking service.
There is also the WorkSafe Incentive Scheme for Employers (WISE) which encourages employers to offer either full-time or part-time work to injured workers returning to the workforce.
I want to go back to work but my doctor says I can only work modified/lighter duties and hours
If your medical treater certifies that you have resumed a capacity for modified or lighter duties within the 52 week period, your employer is obligated to provide you with suitable duties (including for example, light duties or reduced hours) as long as it’s reasonable to do so.
If your employer cannot offer you suitable duties which cater to your ongoing restrictions stated in your certificate of capacity, you should communicate this with the WorkCover agent and consider accessing the NES or the WISE programs. Once you do return to work, your weekly payments will reduce depending on the amount you earn.
For example, if you worked 40 hours per week prior to your work injury and then return to 20 hours of work per week, the WorkCover agent remains obligated to pay your weekly payments for the difference. For more information about weekly payments, please visit this WorkSafe Victoria page about weekly payments.
Can I resign while on Workcover?
Yes, but it can affect your WorkCover benefits.
If you resign from your pre-injury employment for reasons unrelated to your work injury, your weekly payments may be reduced, suspended or ceased altogether.
For example, if your employer keeps contacting you to pressure you to return to work despite your medical treaters continuing to certify your incapacity and you resign, your resignation would be considered related to your work injury and would not impact your weekly payments.
However, if you resign from your pre-injury work because for example, you moved house, the agent has discretion to reduce the rate of your weekly payments. The agent will also require you to participate in services to help you return to work. If you do not comply with this return-to-work obligation, the agent can again reduce or suspend your weekly payments.
What can I do if my employer terminates my employment when I’m off work due to my injuries?
As discussed above, the employer is obligated to hold your pre-injury job open for 52 weeks. If it was reasonable for the employer to terminate your employment, the WorkCover agent will continue paying your weekly payments until you resume a capacity to work.
If you believe that your employer terminated you solely because of your workplace injuries, you may be entitled to make an unfair dismissal claim with the Fair Work Commission. For more information, you should consider contacting Jobwatch for further guidance.
At Polaris, we are experts in WorkCover claims. If you’re experiencing issues in relation to your return-to-work obligations after your workplace injury, or you have any other concerns related to your WorkCover claim, contact us for a free consultation to find out where you stand.