If the compensating authority makes a reviewable determination that you disagree with then you can lodge an Application for Review in the South Australian Employment Tribunal. Reviews (also known as disputes) about workers compensation matters are dealt with in the SAET. The SAET provides independent resolution for workers compensation matters including:
- disputes about workers compensation claims;
- undue delays 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.
Applications for Review
A worker who is dissatisfied with a decision made by the compensating authority and wishes to dispute it must do so by completing and lodging an Application for Review with the SAET within one month of receiving the decision. The SAET will serve a copy of the application on the compensating authority and immediately refer the matter to a conciliation officer who will arrange for an initial directions hearing to take place (either in person or by telephone) within 21 days. The compensating authority will have 10 days or such other time as may be allowed to confirm, withdraw or vary the decision. If the compensating authority confirms the decision or in the alternative varies the decision and the worker is not satisfied with the variation then the conciliation will continue.
The conciliation conference should be within 28 days of the initial directions hearing. The conciliation conference is conducted in an informal manner with the conciliation officer’s role essentially being to make all reasonable efforts to bring the parties to the dispute to agreement. For this purpose the conciliation officer may for example if the dispute involves a medical question refer such question to an independent medical advisor and may adjourn the conference if necessary for up to six weeks.
Where the conciliation conference fails to bring about a settlement of the dispute then the matter will be referred to a judge for hearing and determination in the form of a trial. Lay (non-expert) evidence will usually be given by written statements and expert evidence in the form of written reports. Witnesses will be cross-examined and the parties will make their arguments. Both the compensating authority and the worker are entitled to be legally represented at conciliation and at hearing and determination.
On 1 July 2015 the South Australian Government introduced significant reforms to the Worker’s Compensation system. However, if your injury and claim pre-date 1 July 2015, you may still be entitled to some benefits under the revoked Workers Rehabilitation and Compensation Act 1986.
The Return to Work Act 2014 changes the time period in which you can claim weekly payments of income maintenance. If you have a pre-existing claim, then you may be entitled to claim weekly payments until 1 July 2017. It should be noted, however, that your compensating authority has retained powers which allow it to discontinue your weekly payments if:
- You consent to the discontinuance;
- The compensating authority is satisfied on the evidence available that you have ceased to be incapacitated for work;
- You have returned to work and are earning the same amount or more than you were when you were injured;
- You have been dismissed from your employment for serious and willful misconduct;
- You breach your obligations of mutuality;
- You leave the State for more than two (2) months without the compensating authority’s consent; or
- You begin living outside of South Australia.
If you have a worker’s compensation claim which pre-dates the 1 July 2015 changes we recommend that you obtain legal advice regarding the redemption of your claim.
Under the Return to Work Act 2014 an injured worker can only claim medical expenses for 12 months after the discontinuance of weekly payments. Accordingly, this means that you can only receive treatment for a maximum of three (3) years. If your claim pre-dated the changes, then a best case scenario is that you can claim medical expenses until 30 June 2017.
It should be noted that costs associated with the maintenance of “therapeutic appliances” which are required for you to maintain your capacity and surgery which was approved before the expiry of your medical expenses are exempt from the time limits. “Therapeutic appliances” include: hearing aids, glasses, contact lenses, false teeth, prosthetics, crutches, wheelchairs or any other appliance or aid for reducing the extent of an injury or enabling a person to overcome in whole or part the effects of an injury.
Lump Sum Payment For Permanent Impairment
One of the biggest changes to the worker’s compensation legislation was a removal of your right to have your injuries assessed for permanent impairment in stages or by multiple doctors. Under the new Return to Work Act you are only allowed one permanent impairment assessment, which must be arranged by the compensating authority. The threshold for compensation remains 5% whole person impairment as assessed under the American Medical Association’s Guides to the Evaluation of Permanent Impairment fifth edition.
The changes to the legislation were inherently unfair to workers with an injury which pre-dated the changes. This is because many injured workers chose to have their injuries assessed in stages. On the face of it, this new legislation would prevent them from receiving all of their entitlements. The South Australian Government rectified this issue and passed temporary regulations which protect a worker who has had some, but not all of their injuries assessed.
If you have a workers compensation claim which pre-dates 1 July 2015 contact Mantzoros & Partners Lawyers to arrange a no obligation free first interview.
Most employers are registered with Return to Work SA which contracts out the management of claims to one of two claims agents, Employers Mutual Limited (EML) or Gallagher Bassett (GB). The employers who are not registered with Return to Work SA are known as self-insured employers and manage their own claims. Injured workers have the same entitlements, whether they are employed by a registered employer or by a self-insured employer. Return to Work SA, its claims agents and self-insured employers are called compensating authorities.
If you are injured at work, you may be entitled to payment of one or more or all of the following types of compensation:
- Medical Expenses;
- Income Support;
- Rehabilitation; and
- Lump Sum Payments.
Many people who suffer from hearing loss have been exposed to noise at work. If this is the case then you may be entitled to compensation for Noise Induced Hearing Loss.
If you work or have worked in noisy jobs such as factories, airports, building sites or any job where you are exposed to noise from machines, and have noticed that you can’t hear as well as you used to, you may be entitled to compensation under the Return to Work Act 2014.
Compensation for Noise Induced Hearing Loss includes:-
- Lump sum payment for pain and suffering.
- Payment of medical expenses, including for hearing aids.
- Income maintenance payments if you cannot work due to the level of hearing loss.
You are able to make a claim for compensation for Noise Induced Hearing Loss even if you stopped working or left the noisy job.
If you have experienced hearing loss and work or worked in a noisy environment then call us on 08 8396 3143. We can arrange an assessment with a qualified audiologist who will diagnose if you have Noise Induced Hearing Loss. In the event that you have suffered from Noise Induced Hearing Loss, we will gather the evidence needed and submit your claim with the relevant insurer, all on a no win, no fee basis.
Please contact us today for advice on making a claim.
The Return to Work (formerly WorkCover) scheme is in place to ensure that all injured workers are provided with medical treatment and financial assistance whilst they recover from their injuries.
If your medical practitioner advises you to take some time off work then you will usually be entitled to weekly payments of income maintenance. You will also be entitled to reasonable medical expenses.
Often clients are apprehensive about lodging a workers’ compensation claim because they feel like they are hurting or letting down their employer. It is important to remember that you are entitled to medical treatment and compensation for your losses which arise from a workplace injury and your employer will not only know this, they will have insurance in place to ensure that you receive your entitlements.
Important things to remember when making your claim
1. Remember that as an injured worker your rights are protected.
Some injured employees feel guilty or anxious about making a workers’ compensation claim. Many worry that taking action will give them a bad reputation, cause their employer to reduce their work hours, or cost them their jobs. If your employer is discriminating against you due to a workplace injury, remember that the law can assist you. The simple fact of the matter is that if you’ve suffered an injury at work, you are entitled to make a claim. Taking the time to rest, heal and receive medical treatment is likely to help you return to full duties quicker and be better for you in the long run.
2. Provide as many details as you can.
You should make an appointment to see your GP as soon as possible. When you see your GP make sure you advise him of your workplace injury, they’ll take a history and note what happened to you. It’s crucial to take this opportunity to provide your doctor with accurate details of the incident, even if those details seem unimportant at the time. If there are any issues about the cause of your injury at a later date, your GP may need to know exactly how the work injury happened.
If you need any time off work, you should also ask your doctor for a WorkCover certificate.
3. Avoid giving a statement to Return to Work (WorkCover or your self-insured employer).
Do not make a statement to a WorkCover investigator. You have no legal obligation to do so. More often than not honest workers have trouble getting their claims accepted after they have provided statements. This is because they haven’t appreciated the significance of the document they are signing and they have not been abundantly clear in their answers. Any doubt or inconsistency in your answers could give Return to Work ‘wiggle room’ to deny the claim. If you have any doubts, always seek legal advice before agreeing to give a statement.
4. Make your claim as soon as possible.
If you need time off or cover for medical expenses, or both, you should make a WorkCover claim as soon as possible.
5. Know what to do if your claim for compensation is rejected.
If your claim is rejected, you should lodge an Application for Review in the South Australian Employment Tribunal (“SAET”). Return to Work SA should cover your legal fees for the lodgement of the Application and the process required by the SAET.
After an Application for Review is lodged your claim will proceed to conciliation. At this point the parties will investigate the claim and try to negotiate a mutually acceptable resolution. If this fails to resolve the dispute, you will then have the option of going to Hearing and Determination. This is similar to a Court process in which a Judge will hear your dispute and make a Judgment which is binding on the parties. It’s very important to seek legal advice about your claim’s merits rather than simply give up because you’re worried about the ramifications or legal costs of challenging a rejection of your claim.
6. Seek legal advice.
If you suffer an injury at work, seek legal advice at the earliest possible opportunity. Competent legal advice can assist you, even if your claim has been accepted. This is because there are many facets to a workers’ compensation claim, including lump sum entitlements. No matter what Return to Work’s assessment of your claim is, call our office on 08 8396 3143 to find out whether you’re entitled to anything else.
Injured workers are entitled to compensation for certain medical and associated expenses reasonably incurred in relation to their injury. These costs include doctor’s fees, hospitalisation, pharmaceutical expenses, therapeutic appliances and the fees of allied health professionals such as psychologists, dentists, physiotherapists, chiropractors and speech pathologists. Travel costs to and from doctors’ appointments are also payable and there is a prescribed per kilometer rate for travel expenses in a private vehicle.
Many doctors will invoice your claims agent directly, however, on occasion you may be asked to pay the bill upfront. In such circumstances, keep a copy of the receipt and forward it to your claims agent. They should reimburse you within a reasonable time frame.
A worker’s entitlement to medical and like expenses ends one year after returning to work or one year after ceasing to receive weekly payments of compensation. This limit does not apply to seriously injured workers or to any therapeutic appliance required to maintain a worker’s capacity. If a worker is likely to require surgery at a later stage he or she can apply for pre-approval of later surgery expenses before they lose their entitlement to medical expenses.
A worker who is not a seriously injured worker and is incapacitated for work as a result of injury is entitled to income support by way of weekly payments of income maintenance for a period of two calendar years from the date of first entitlement to weekly payments. The weekly payments are calculated by reference to the worker’s average earnings over the 12 months before the injury and this includes lost income from a second job. Overtime payments will be included only if there was a reasonable expectation of overtime continuing at the date of injury. Further the average weekly earnings of a worker who is covered by an industrial award or agreement cannot be less than the rate under the award or the agreement.
For the first 52 weeks of incapacity workers are entitled to weekly payments equal to 100% of their average weekly earnings and for the remaining 52 weeks to 80% of their average weekly earnings.
Supplementary Weekly Payments
An injured worker who has an incapacity for work as a result of surgery which has been approved by the compensating authority is entitled to a further 13 weeks of weekly payments. These weekly payments are known as supplementary income support payments and are payable only if the incapacity occurs after the end of two calendar years.
If you believe that you are entitled to income maintenance payments but are not receiving them or not receiving the correct amount, contact us on 08 8396 3143 or by email today to arrange a free no obligation first interview.
A seriously injured worker is a worker who has been assessed as having a permanent whole person impairment of at least 30%.
Seriously injured workers can continue to receive weekly payments (equal to 80% of their average weekly earnings) beyond two calendar years until they reach retirement age.
Seriously injured workers are also entitled to annual economic adjustments to their weekly payments to take into account any changes in rates of remuneration due to award increases or enterprise agreements.
Weekly payments of income maintenance can cease other circumstances including circumstances where workers:
- Consent to a discontinuance;
- Cease to be incapacitated for work;
- Return to work;
- Obtain work as an employee or self-employed contractor that is providing remuneration equal to or above their determined average weekly earnings;
- Are dismissed from employment for serious and wilful misconduct;
- Are residing outside the State or have been absent from the State for more than 2 months in a continuous period of 12 months;
- Fail to submit to a medical examination or fail to provide a medical certificate when requested to do so;
- Refuse or fail to undergo proper medical treatment
- Refuse or fail to participate or cooperate in the establishment of a recovery/return to work plan or comply with obligations under a recovery/return to work plan;
- Refuse or fail to undertake work that has been offered or take reasonable steps to find or obtain suitable employment.
Where weekly payments are to be discontinued, the compensating authority must give notice in writing of the proposed discontinuance. If the worker has been in receipt of weekly payments for less than 52 weeks the notice period is 14 days and in any other case 28 days.
Workers who are left with a permanent disability as a result of their injury may be entitled to receive compensation for their disability pursuant to Section 58 of the Act. This compensation which is paid in a lump sum is based on the degree of impairment (expressed as a percentage) of the whole person. There is a 5% threshold that must be met for an entitlement to arise. Workers who are assessed to have less than 5% whole person impairment are not entitled to any compensation under section 58. The assessment must be in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition) and the Impairment Assessment Guidelines 2015 and must be made by a doctor who has been accredited to perform such assessments. Workers are given the opportunity to choose the assessor however only one assessment can be made of all permanent injuries arising from or attributable to the same trauma or cause. Section 58 lump sums are only payable for permanent physical injuries; No lump sum is payable for permanent psychological injuries.
If you are contacted by the compensating authority regarding a section 58 lump sum you should immediately contact us for advice. As different doctors can make considerably different assessments of the same injury, specialist legal advice is in your best interests. We can advise you on the choice of a suitable assessor. If you are unhappy with a decision under section 58 it can be challenged in the South Australian Employment Tribunal (SAET) where a second opinion can be arranged if appropriate.
A worker who is not a seriously injured worker and who has been assessed to have a degree of whole person impairment from physical injury that is no less than 5% is also entitled to a lump sum under section 56 for economic loss. This economic loss lump sum is calculated to take account of the age of the worker and their full time equivalent weekly hours of work. Workers whose disability is in the nature of psychiatric injury or consequential mental harm, or noise induced hearing loss do not have an entitlement under section 56 irrespective of the degree of permanent impairment.
Pursuant to Sections 53 and 54 of the Act the compensating authority can make a lump sum payment to a worker to finalise its liability to pay weekly payments of income maintenance and to pay compensation for medical expenses. Redemption is a voluntary agreement and cannot be made unless—
- the worker has received competent professional advice about the consequences of redemption; and
- the worker has received competent financial advice about the investment or use of money to be received on redemption; and
- the compensating authority has consulted with the employer out of whose employment the injury arose and has considered any representations made by the employer; and
- a recognised health practitioner has certified that the extent of the worker’s incapacity resulting from the work injury can be determined with a reasonable degree of confidence.
If you are contacted with a redemption offer it is important that you contact us for advice. The amount of the redemption payment is reached by agreement and we can negotiate on your behalf as well as arrange for you to see a financial adviser for the requisite financial advice and provide you with the requisite professional advice. The cost of the financial and professional advice is met by the compensating authority.
The Return to Work Act provides for a range of services, formalised in a recovery/return to work plan to assist injured workers to recover as best as possible and restore them to the workforce and the community. For this purpose the compensating authority will usually engage the services of a rehabilitation provider.
Recovery / Return to Work Plans
Where an injured worker is likely to be incapacitated for work for more than 4 weeks, the compensating authority must prepare a binding recovery/return to work plan in consultation with the worker and where reasonably practicable, the worker’s treating doctor. A plan may also be imposed in other circumstances.
A recovery/return to work plan may impose obligations on a worker and /or the employer.
If a worker fails to participate or cooperate in the establishment of a plan, or fails to comply with an obligation under a plan, the worker’s income maintenance payments may be discontinued.
Recovery/return to work services may include fees for training and educational courses, and the provision of other equipment or services to assist a worker cope with the injury, even where those services are not focused on returning the worker to work. This can include home help, garden maintenance, shopping and even the costs of a special clothes line or bed or chair. A worker may request specific equipment, services or training as part of a rehabilitation plan or program.
A worker may dispute decisions about the nature and scope of recovery/return to work plans by commencing proceedings in the SAET. The worker however will still be bound by the plan while the dispute is in progress. If you consider that a plan is unreasonable you should contact us immediately.
From time to time case conferences will be arranged to discuss return to work issues. These conferences may involve only the worker and the case manager and/or rehabilitation consultant but usually involve medical practitioner/s as well. The employer may also be involved. Many workers report feeling intimidated at case conferences. There are also reports that some case manager and rehabilitation consultants attempt to exert pressure on medical practitioners to certify workers fit for work much too early. Workers have the right to have their lawyer or other representative present if they wish so as to ensure their interests are properly looked after.
Workers have the right to choose their own treating doctors. The compensating authority cannot dictate to a worker who they should see for treatment but does have the right to have a worker independently medically examined. The doctor conducting the independent medical examination (IME), however, will only be able to provide a report. A Worker’s lawyer can also arrange for the worker to undergo an IME. Workers are also free to change treating doctors should they feel a need to do so. Workers, however, who change doctors frequently, may be accused of “doctor shopping”.
The opinion of a medical specialist will nearly always be preferred to that of a general practitioner. Where there is disagreement between a worker’s general practitioner and a medical specialist engaged by the compensating authority to provide an independent opinion, and the worker does not have a treating specialist, the worker is likely to be at a substantial disadvantage.
For this reason workers, if they do not have a treating specialist, should discuss with their general practitioner obtaining a referral to see a specialist. Most often this will be an occupational physician who can have input into the workers rehabilitation and return to work.