3.7.2 Worker moves overseas

3.7.2.2 Temporary absence from Australia | 3.7.2.2 Temporary absence from Australia | 3.7.2.3 IMEs for overseas workers - claims management

Workers with existing entitlements to compensation

If a worker receiving weekly payments ceases to reside in Australia, their entitlement to weekly payment ceases unless before leaving Australia, they satisfy the Agent that they have NCWC No Current Work Capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment, and are likely to have NCWC indefinitely.

WIRC s175(1)
AC s97(2)

Workers claiming entitlements to compensation after leaving Australia

If a worker ceased to reside in Australia and subsequently claims to be entitled to compensation they must:

For weekly payments:

  • establish their entitlement and
  • satisfy the Agent that they have NCWC and are likely to have NCWC indefinitely.
WIRC s175(4)

For medical expenses:

  • receive approval for the reasonable cost of services to be provided overseas.
WIRC s228(1)

The Agent must confirm in writing the medical expenses that are approved for the worker to receive overseas. Any medical services outside of the initial authorisation will require further approval by the Agent.

Define "ceases to reside in Australia"

The legislation does not define "ceases to reside in Australia" - each case must be assessed individually.

A worker does not have to leave Australia permanently to cease to reside in Australia; however, precedent has established that there must be some degree of permanency in the departure, which can be ascertained from the worker’s intention.

The worker’s intention to return, or otherwise, can be expressed or implied from the worker’s actions, circumstances of the worker’s departure and stay outside Australia.

Factors indicating that a worker ceases to reside in Australia

These can include:

  • the worker is not an Australian citizen, and their work permit, temporary entry permit or processing entry permit has expired including deportation.
  • the worker disposes of or intends to dispose of their home and other belongings (e.g. their motor vehicle) in Australia.
  • the worker purchases or rents a home overseas, as opposed to staying in short term accommodation or with family or friends.
  • the worker severs financial ties with Australia (e.g. pays out loans and closes accounts).
  • the worker undertakes activities overseas which are consistent with living in a particular place (e.g., joining a local club or becoming employed).
  • the worker’s immediate family leaves Australia to live with the worker overseas and they enrol in schools or take up employment there.
Temporary absence from Australia

A worker does not cease to reside in Australia if they are temporarily absent. For example, a person who has a three month holiday or a work assignment overseas is not normally considered to have ceased to live in Australia.

See: Temporary absence from Australia.

Assessing if the worker is likely to have no current work capacity indefinitely

If the worker considers they should remain on weekly payments, the Agent should inform the worker of the legislation – that payments will cease unless it is determined their incapacity is indefinite.

The worker should also be advised they need to provide evidence of their incapacity being indefinite prior to them leaving the country. This should occur at a minimum of six weeks prior to departing Australia.

The Agent should then undertake an immediate review of the file, and any evidence provided. They may need to seek further information as required to complete the review (e.g. arrange an IME Independent Medical Examiner / Independent Medical Examination, or seek further information from treating professionals).

The effect of a worker "ceasing to reside in Australia"

If the worker has not satisfied the Agent that they are likely to have NCWC indefinitely prior to leaving Australia:

  • their weekly payments are terminated from the day after their departure.
  • no period of notice is needed to terminate weekly payments if a person has ceased to live in Australia. However, the Agent must advise the worker and employer of the termination.
  • A worker may remain entitled to the reasonable costs of medical and like services subject to the workers’ compensation legislation and the approval of services and relevant overseas providers by WorkSafe. See: Overseas medical certificates and providers.

If the worker has satisfied the Agent that they are likely to have NCWC indefinitely:

If the worker returns to Australia to live on a permanent basis:

  • the 'resides overseas' flag will need to be removed (ie. left blank)

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