Workers Compensation

If you suffer a work related injury or illness in South Australia you may be entitled to compensation under the Return to Work Act 2014. Claims for compensation are made via an agent for the Return to Work Corporation of South Australia (‘Return To Work SA’).

If you are injured at work, you may be entitled to:

  • income support;
  • reasonable and necessary medical treatment and care;
  • return to work services such as job placement and retraining;
  • lump sum compensation;
  • transportation costs; and
  • death and funeral expenses.

If you are seriously injured, you may have the option to bring a Common Law claim for damages.

Making a claim

A claim for workers compensation should be made as soon as possible after you sustain an injury. You should also seek medical advice and treatment, and report your injury to your employer promptly.

Generally, you should complete a Notice of Injury and Claim for Compensation form. Your employer will complete an Employer Report Form. These forms are forwarded by the employer to Employers Mutual, the claims processing agent for WorkCover, and this initiates your claim. Procedures may differ in relation to an exempt employer.

If you have not already done so, a claim for workers compensation can be made by completing the below form and we can assist with this process.

www.rtwsa.com/media/documents/claim-form.pdf

Further information can be obtained from:

  • Return to Work SA

www.rtwsa.com

  • The South Australian Employment Tribunal

www.saet.sa.gov.au

Time limits for lodging a claim

A WorkCover claim must be lodged within six months of your injury having been sustained or your illness diagnosed. In certain circumstances, a claim will be accepted after the six-month period.

For common law claims associated with a workplace injury or illness, if you are over 18 years, you have 3 years from the date of the work related incident to lodge and settle a claim with the insurer. If the claim fails to settle, court proceedings must be filed before the 3 year anniversary of the incident. This is known as the “statute barred date”.

If you are late filing proceedings you will not be able to claim compensation without making an application to the court which may, in certain circumstances, grant an extension of time.

If you are under 18 years at the time of injury, you have 3 years from the date of your 18th birthday to issue court proceedings in relation to your claim. However, at any time after the injury your parent or guardian can instruct solicitors to bring a claim for compensation on your behalf. It is not always necessary to wait until you are 18 years old. Much depends on the nature and long term consequences of your injuries.

Workers compensation payments

Workers compensation is restricted to income maintenance payments (if you are unable to work), payment of medical and rehabilitation expenses, and a lump sum payment for non-economic loss if you have suffered a permanent impairment as a result of your injury.

There are criteria that need to be met before payments can be made, particularly for lump sum payments.

Income maintenance is based on a worker’s actual earnings in the 12 months prior to injury and extends to basic wages, shift allowances, overtime, and superannuation salary sacrifice. An injured worker will receive 100% of the assessed income maintenance figure for the first 13 weeks that he or she is off work due to the injury or illness. Thereafter, there is a reduction to 90%, followed by a further reduction to 80% after 26 weeks.

Medical and rehabilitation expenses include medical treatment, hospital services, physical therapies such as physiotherapy or occupational therapy, psychological therapy, pharmaceuticals, domestic assistance and personal care.

The lump sum payment will be determined by your assessed whole person impairment, which must be 5% or more and which does not extend to psychiatric injury. If you also have a common law claim against a third party for the work-related injury or illness then you may be entitled to various categories of compensation, known as “heads of damages”. Not all heads of damage may apply to you and will depend on your personal circumstances. Therefore, your entitlements may or may not extend to the following:

  • An amount for pain, suffering and loss of the amenities of life (the extent to which your ability to engage in sport, leisure activities and so on has been restricted). This amount is based on a scale between 0 and 60, where 0 represents the most trivial injuries and 60 represents the most serious, short of death.
  • Where you have been incapacitated for work, with the exception of the first week, an amount equivalent to any past loss of earnings (excluding any taxation which would have been paid) and (if appropriate) an amount to cover any future loss of earnings or loss of future earning capacity.
  • Treatment expenses reasonably incurred at the recommended rates including the cost of hospital admissions, medical treatment, chiropractic therapy, physiotherapy, pharmaceuticals and rehabilitation, and an allowance for future medical treatment.
  • Where as a result of your injuries, a spouse, domestic partner, child or parent has been obliged to carry out domestic and personal services on your behalf you may claim compensation for the voluntary services that were provided.
  • Where domestic services may be required as a result of any incapacity resulting from your injuries, an award may be made for past and future paid services.
  • Likewise, if you required and/or will require the services of a personal carer, an award may be made for the costs of such services.
  • In circumstances where you require equipment, aids and appliances, vehicle or home modifications because of your injuries, an award to cover the associated costs, together with the costs of future replacements, if applicable.
  • Reimbursement for travelling expenses incurred directly as a result of travelling to and from appointments for medical treatment.
  • A contribution towards your legal costs.

It is important to understand that any benefits received from WorkCover need to be repaid from the settlement monies associated with the third party claim.

Serious Injury

If you are injured at work and are assessed as having a whole person impairment of 30% or more, you will be entitled to:

  • income support until retirement age of 100% of your notional weekly earnings in the first year, and 80% of your notional weekly earnings for subsequent years;
  • treatment, care, and support services over the course of your lifetime;
  • a payment for non-economic loss.

Redemptions

If you are seriously injured at work from 1 July 2015, you may apply for a redemption of your weekly payments by agreement with Return to Work SA.

Common Law Claims

If you are seriously injured at work from 1 July 2015, you will have the option to bring a Common Law claim for damages for economic loss, where your employer’s negligence caused or contributed to your injury. If you recover damages at Common Law for your economic loss, your treatment, care, and support services will continue to be funded by the Return to Work Scheme, however, you will no longer be entitled to weekly payments or a redemption.

Workplace Fatalities

Dependants of a fatally injured worker in a workplace injury may be entitled to financial support and assistance including weekly payments, a lump sum benefit, funeral benefits, and counselling services.

Processing a claim

Unless your claim is complex, it takes approximately one month from submission of the claim form for the claims agent or the exempt employer to accept or reject your claim.

Generally, in more complex matters, the claims agent will obtain a medical report from your treating general practitioner or, in some situations, an independent medical assessment will be arranged.

If there is a delay in obtaining a determination, a worker can file an application at the Workers Compensation Tribunal.

If a determination is made that you do not agree with you can file a “Notice of Dispute” at the Workers Compensation Tribunal within 30 days of the date of receiving the determination. The claims agent is then given 21 days to confirm or reconsider its decision. If the decision is confirmed a Conciliation Officer is appointed and the matter may proceed to a Conciliation Conference with a view to the parties discussing and resolving it. If the matter fails to resolve, it can be referred to arbitration or directly for Judicial Determination.

When we discuss your claim with you, we will explain the procedures associated with, and the benefits of, arbitration and Judicial Determination. Decisions made at Judicial Determination can be appealed to the Full Bench of the SA Workers Compensation Tribunal.

How much will my claim cost?

Our professional fees and disbursements will be charged in accordance with the scale of costs prescribed by the Supreme Court Civil Rules 2006. In the event of a dispute you will be entitled to a contribution to your costs from WorkCover or your exempt employer. The rules in relation to this are complex and will be discussed with you in more detail at your initial interview.

Repayment of Centrelink, Medicare and private health insurance benefits

If you received Centrelink benefits while incapacitated because of your work-related injuries and prior to your claim being accepted, you may be required to repay such benefits on receipt of your compensation.

Likewise, if Medicare has paid certain medical services associated with your injury, or if you have claimed the costs of treatment from your private health insurer, you will need to repay these benefits on receipt of compensation.

Workers compensation law is complex, and it is important for injured workers to receive expert advice to protect their legal rights, and to navigate the relevant processes to ensure they receive fair treatment and compensation for their loss.

If you need any assistance contact one of our lawyers [email protected] or call (08) 8202 0099 for a no-obligation discussion and for expert legal advice.