52 weeks and WorkCover
We have a lot of our WorkCover clients ask us questions regarding the “52 week period” whereby employers are generally obliged to provide suitable employment for a period of 52 weeks of the worker’s incapacity.
3 common questions
- Will I have to quit after 52 weeks of weekly payments? Can my employer legally terminate my employment then?
- Do my medical expenses stop after 52 weeks of weekly payments?
- Do my weekly payments stop after 52 weeks of weekly payments?
The answer to all these questions is NO.
The 52-week period only relates to a few issues
- At 52 weeks the employer no longer has a legal obligation to provide a worker with suitable duties. In effect, if the employer does not have suitable duties (modified work) that fits within the medical restrictions placed on the worker, the employer can send the worker home, but the worker will stay in receipt of weekly payments. The worker’s employment is not terminated as a part of that process. If the worker’s condition improves to the point they can return to work, or if the employer finds suitable duties, the worker can go back to work.
- Some employers feel that after the 52 week period has elapsed that they automatically have a right to terminate a worker's employment. This is not correct. In practice, some employers will still terminate the worker's employment after 52 weeks have lapsed in the belief that they have a legal basis to do so. If this happens, you should contact a lawyer immediately to get further advice.
- Superannuation payments commence after a worker has received 52 weeks of weekly payments.
- Documentation from the WorkCover insurer will be sent around that time to make arrangements for payment of super.
- The test for entitlement to medical and like expenses changes after a worker has received 52 weeks of weekly payments. While the test becomes more restrictive after the 52-week period expires, WorkCover insurers rarely enforce it. If the insurer makes a decision to restrict or terminate entitlements to medical and like expenses, legal advice should be sought.
On many occasions, our clients are given incorrect information from their employer about this 52-week period.
In these complex and delicate scenarios, it always pays to seek independent advice from a lawyer, to make sure all parties understand their rights and obligations under the legislation.