Practising in Work Injury Law Since 1978

Introduction:

As of 1 July 2015 Workers Compensation in South Australia has undergone its biggest change in over 25 years.

This has resulted from the South Australian Government passing the Return to Work Act 2014. As part of the changes, the new scheme known as “Return To Work SA” replaced WorkCover SA. This has incorporated a strong focus (by an Authorised Claims Agent for Return To Work SA) on early intervention and targeted return to work plans for all injured workers.

Effects on a worker injured before 1 July 2015:

Any such existing claim has been moved on to the Return To Work scheme and any income support and other benefits to which there may be an entitlement, will be provided under the Return To Work Act 2014.

There are some “transitional provisions” in place, meaning that certain parts of the new scheme will not be applied to a worker injured before 1 July 2015.

However, for the most part your entitlements and obligations will now come under the new scheme.

Even though you were injured before 1 July 2015, unless your injury is defined as meaning that you are “seriously injured”, many of your entitlements will be reduced.
A “seriously injured” worker is a person who has a Whole Person Impairment (WPI) of 30% or more, as assessed by certain guidelines within the new scheme. The 30% WPI impairment can be either physically based or psychologically based, but not combined.

If you are not “seriously injured” as defined, you will only be entitled, as a maximum, to income maintenance payments for two years and for medical expenses for three years. For anyone injured before 1 July 2015, this means a maximum entitlement to 30 June 2017 and 30 June 2018 respectively, as these limits apply, commencing from 1 July 2015.

The limitation on medical expenses will not affect the need for ongoing therapeutic appliances if required to maintain work capacity. Replacements for such appliances may continue to be funded by the Scheme. In addition, this also applying for an injury since 1 July 2015,, the Return the Work Scheme provides medical support in return to work services, such as re-training, during a recovery period in return to work, after 12 months after income support ceases.

In addition if you were injured before 1 July 2015, you will be entitled to a lump sum disability payment under the new scheme, in respect of any part of the body having a long term disability (unless you have already finalised any such entitlement before 1 July 2015). However, unlike a worker injured since 1 July 2015, you will not be entitled, in the alternative to a disability payment, to a lump sum payment for “economic loss”.

Workers injured since 1 July 2015:

The right to income support and medical benefits will be the same as for any worker injured before 1 July 2015, namely up to a maximum of two years for income support and three years for medical benefits, calculated from the date of injury. This is except for a “seriously injured” worker, as defined.

As there is an additional option in terms of a lump sum payment for economic loss under the “new law”, as an alternative to non-economic loss for long term disability, it is important to seek legal advice early, in considering in a timely manner the alternative options available.

In addition, if “seriously injured”, there is the possibility of making a common law claim for damages – however common law claims are limited.
For an injured worker with a “non-serious” injury under the Return to Work Act, the Return to Work Scheme provides medical support and return to work services, such as retraining, during a recovery period and return to work. This support is available for up to 12 months after income support ceases.

Seriously injured workers:

As explained above, a “seriously injured” worker is one with a Whole Person Impairment (WPI) of at least 30% as assessed by the relevant guidelines – either physically or psychologically based, but not combined.

If someone is immediately classified as “seriously injured” – such a worker may be provided with lifetime care and support. There may be disputes with a decision required in some cases to qualify.

Return to Work Services and retraining will also be accommodated if this is desired by such a worker.

Where an assessment has already been performed and the result was a WPI of at least 30%, this results in the worker being automatically considered as “seriously injured”. A WPI assessment can only be made by a medical expert who has been accredited to perform such an assessment. This assessment provides a medical opinion on the level of permanent impairment expressed as a percentage loss of whole body function.

If a worker believes that their condition is stable (and has not yet had a WPI assessment), the worker can seek such an assessment be made. However it is necessary to confirm that a worker has reached maximum medical improvement (MMI) before a WPI will be arranged.

If a worker’s injury had not stabilised by 1 July 2015 a worker may apply for an interim decision to be made if the worker believes they will meet the criteria as a “seriously injured” worker. Where there is evidence that supports the WPI to be at least 30%, the interim decision may take effect to provide appropriate support to such worker.

The authorised claims agent is however only required to consider one application for an interim assessment.

Once a worker’s injury has stabilised and the assessment is undertaken, a final decision will be made as to the percentage of permanent impairment.

Unfortunately, if an injured worker has a WPI even only slightly less than 30% – even if such worker has not been able to return to work for many years – they cannot be considered under this new scheme as a “seriously injured” worker. Here the new scheme works unfairly and all an injured worker can do is to focus as best as may be possible on seeing if their recovery can be improved in some ways to a possible return to light work of some kind, even casual or part-time work. This is particularly important due to the two year limitation on income support for workers who are not “seriously injured”.

Lump sum payments for non economic loss and economic loss:

If you have been injured prior to 1 July 2015, and if you have not already received payment under the old scheme (WorkCover SA) on what was known as Section 43 of the old Act, for permanent disability for an injury sustained, you may apply for the equivalent benefit by way of a lump sum disability payment, for what is known as non-economic loss under the new scheme.

This also applies in respect of more than one injury. That is, if you have received a Section 43 assessment for one injury, but not another injury, in a case where multiple injuries have been suffered before 1 July 2015, then you may apply under the new scheme for a lump sum benefit for the other injury.

However if your injuries were all sustained in the one incident before 1 July 2015, you only have a limited time, until 1 July 2016, to make such application and have a determination made – if you have received a Section 43 lump sum payment previously for one injury, but not the other injury or injuries.

Importantly, only if your injury has occurred since 1 July 2015, are you entitled to a lump sum compensation in the alternative for what is known as “economic loss”. This will need to be fully considered by you with the benefit of legal advice that we recommend you obtain at an early time after any injuries are suffered.

South Australian Employment Tribunal and Worker’s Compensation Tribunal:

Our approach is to assist an injured worker as much as possible without the need for any application to be filed with the South Australian Employment Tribunal (SAET). However if such an application needs to be filed, then we fight hard for the worker’s legal rights in achieving an appropriate outcome, on a cost effective basis – see below as to the legal costs section.

There are however many workers who have needed to proceed in filing a Notice of Dispute under the “old law”. Those matters continue in the Worker’s Compensation Tribunal, which deals with disputes about claims for compensation that were submitted prior to 1 July 2015 under the Worker’s Rehabilitation and Compensation Act 1986.

From 1 July 2015 the Return to Work Act 2014 replaced the Worker’s Rehabilitation and Compensation Act 1986, whereby the SAET was established with the intention of providing just, timely and efficient resolution of Workers’ Compensation matters, including:

  • Disputes about Workers Compensation Claims.
  • Undue delay in decisions on Workers Compensation Claims.
  • Disputes about an employer providing suitable employment for a worker who has been incapacitated for work as a consequence of a work injury.

The SAET has continued to be the Tribunal receiving new applications, whilst any worker who had lodged a matter prior to the commencement of the SAET, will have their matter finalised by the Workers’ Compensation Tribunal.

Costs in Workers Compensation Matters:

We only charge legal fees upon successful completion of your case. In these matters we stand by our “No Win, No Fee” policy. There are usually out of pocket expenses such as medical reports, but there are options available which we discuss with you at your first appointment.

Fortunately in Workers Compensation matters, where a matter requires to be instituted in the South Australian Employment Tribunal (SAET) a substantial proportion of the legal cost incurred is recoverable during the various stages of the dispute, including, if necessary, an actual Hearing. Depending upon the nature of the dispute and the outcome achieved, our “fair cost” approach can be very helpful to you.

We will do our best to minimise any inconvenience for you as to those charges. In many cases we are able to have the insurer agree to meet such out of pocket expenses or, depending upon your financial circumstances, we are often prepared to personally assist you.

We work hard to achieve a truly “user friendly” approach to all charges that you may incur, not only legal fees, but all out of pocket expenses.