A workplace injury can be a challenging experience, impacting your health, finances, and ability to work. If you have been injured at work in South Australia, it is important to understand your entitlements under the workers compensation scheme; administered by the ReturnToWorkSA under the Return to Work Act 2014 (SA) and associated regulations
Summary of Key Entitlements
South Australia’s workers’ compensation system is a ‘no-fault’ scheme designed to help injured workers recover and return to suitable employment.
Key entitlements include financial assistance by way of weekly income support payments, medical expenses that covers reasonable medical treatment and care, and a range of return to work services to assist and support you to return to suitable employment.
Understanding these entitlements and their limitations can help make the claim process smoother and promote your recovery.
1. Injured Workers are Entitled to Lodge a Claim
Generally, if you are injured while working out of or in the course of your employment in South Australia, or you are employed by an employer based in South Australia, you can lodge a workers’ compensation claim if you suffer an injury or illness connected to your employment. This includes:
- Physical injuries (e.g. back injuries; broken bones or other traumatic injuries)
- Mental harm
- Pure mental harm (generally caused by a traumatic experience or experiencing toxic workplace behaviours)
- Consequential mental harm (secondary to a physical injury)
- Gradual onset injuries (e.g. repetitive strain injuries)
- Aggravation of pre-existing injuries, if work is a significant contribution
- Industry illness (hearing loss)
Generally, psychological injuries carry a greater burden in that you will need to show that the significant cause of your diagnosed condition was contributed to by your employment. These claims can become more complicated when pre-existing or other psychosocial factors not related to work are also present.
If you suffer an illness or injury that you believe is connected to your employment, you should:
- Report your injury to your employer promptly, ideally within 24 hours, and if possible, in writing.
- Consult with your doctor. You will need a completed Work Capacity Certificate (the ReturnToWork SA medical certificate) that supports your claim.
- Lodge a claim. You can do this either by reporting the injury by telephone or by submitting a ReturnToWork SA Claim Form with your employer or their claims agent. The forms are available from ReturnToWorkSA website.
Time limits apply. Claims should generally be lodged within six months of sustaining your injury or receiving your diagnosis; however, extensions may be granted where there is a reasonable cause for delay.
2. Income Support (Weekly Payments)
If your claim is accepted and your injury stops you from working or limits your capacity to work, you may be entitled to weekly payments to replace lost income:
- First 52 weeks: 100% of your average weekly earnings (AWE)
- Weeks 53 – 104: 80% of your average weekly earnings
- Maximum period: The maximum entitlement in South Australia is limited to 104 weeks if you have an incapacity for work for that period of time.
Your AWE is calculated based on your retrospective income or earnings from the 52 weeks preceding the date of the injury or event.
There are no exceptions to the above limitation periods unless you are deemed a seriously injured worker. The seriously injured worker is eligible to be paid weekly income support payments until retirement age and medical benefits for the rest of their life. However, the pathway to this category of injury is complex and is wholly dependent on whole person impairment ratings. A threshold of 35% or more for a physical injury and 30% or more for a serious pure mental harm injury summarise those thresholds.
The end of your income support payments then triggers the final 52 weeks of your medical entitlements. In other words, when the income support ends, be it at 104 weeks or some date earlier, this will trigger the beginning of the end of your paid medical entitlements.
If you require further surgery or you are likely to need surgical treatment in the future, you will need to ensure that the insurer is put on notice within the critical time period. You may also be entitled to receive up to a further 13 weeks of weekly payments for any the approved surgery, should this be needed.
3. Payment of Medical and Related Expenses
Reasonable and necessary medical expenses for your work injury are covered, including:
- Doctor and specialist visits
- Surgery and hospital costs
- Physiotherapy, chiropractic, psychological treatment
- Medication
- Travel costs for treatment
As stated, these costs are likely to be covered for 52 weeks after your weekly income support ends. Seriously injured workers may have costs covered for life.
4. Return to Work Support
Most injured workers who require time off work with have a Recovery/Return to Work plan, developed. This should be done with your input. These plans are designed to sets return to work goals and detail a step by step in your recovery. Injured workers have access to support return to work services to help them recover and return to work.
Generally, these plans prioritise a return to work goal to the pre-injury employment (your job) with the same employer. At times, this is neither possible or desirable. In these cased, other goals can be explored. For example, your current employer may have other work that you are able to do, either permanently or while your injury heals. Sometimes, a return to work with a different employer is the best way forward.
The range of return to work services are broad. The scheme is underpinned by a sustainable return to suitable employment. Therefore, those services may include but are not limited to:
- Home and activities of daily living assistance
- Transportation costs
- Accommodation assistance
- Retraining and upskilling
- Occupational therapy
- Vocational counselling
- Job seeking services
- Job placement
5. Suitable Employment
Employers are legally obligated to provide suitable employment if an injured worker has the capacity to work, including modified or alternative duties reflecting the worker’s capacity and taking into account the skills, education, and experience.
The injured worker is also legally obligated to engage in the return to work plan or process. Failure to do so will a breach of mutuality and this can result in income support being discontinued.
6. Lump Sum Compensation for Permanent Impairment
If your injury results in a permanent impairment, you may be eligible for lump sum compensation based on an assessment of your Whole Person Impairment (WPI). Your injuries must have reached a stabilised condition, and the WPI assessment must be performed by an accredited impairment assessor and calculated in accordance with the Impairment Assessment Guidelines.
The assessment will determine your eligibility for a lump sum payment, usually for economic loss (loss of earning capacity) and non-economic loss (pain and suffering). The amount payable is strictly regulated and in accordance with the scheme based on the % of your permanent impairment on the whole person. The threshold minimum starts at 5% WPI, and the greater the impairment, the higher the percentage rating and likely lump sum compensation will be.
If you have suffered mental harm that is connected to your physical injury, you are not entitled to lump sum compensation for that injury. If you suffered pure mental harm and were under the care and treatment of a psychiatrist, then you may be eligible for a permanent impairment assessment by one of the accredited psychiatrists. You will need to reach a 30% WPI (seriously injured worker – pure mental harm only) in order to access ongoing income and medical treatment. However, there is no lump sum compensation for workers with pure mental harm injuries.
Seriously injured workers may also bring an action for damages in negligence under the common law if the employer’s negligence caused or contributed to your injury. Such claims are complex, and if you received any support under the Return to Work Act 2014, those monies are likely to be recovered by ReturnToWork SA. You will certainly need legal advice to move forward in this space.
7. Disputing a Decision
If ReturnToWorkSA or one of their claims agents makes a decision that you do not agree with, you have certain rights to challenge that decision.
For example, you have a right to dispute a rejected claim, or one that reduces your weekly payments or claims that you are only entitled to medical expenses; or they refuse you medical treatment. You can also dispute decisions about aspects of your Recovery/Return to Work Plan and decisions relating to return to work services. Likewise, you can dispute your Average weekly Earnings (AWE) as well as decisions relating to your entitlements to lump sum compensation.
These disputes are filed in the South Australian Employment Tribunal (SAET) for independent resolution, initially always before a Commissioner via conciliation, and if not resolved, then referred to a presidential member for trial.
Strict time limits apply for disputing decisions, so we recommend seeking immediate advice from an experienced workers’ compensation lawyer.
Next Steps and Getting Help
This is general information only and does not constitute legal advice.
The workers compensation scheme in South Australia and the rules and regulations that underpin it are notoriously technical and complex.
If you have been injured at work, you should gather your medical evidence and report your injury quickly. If you wish to pursue a claim, are unclear about any part of an existing claim, or want to dispute a decision, please seek advice from a lawyer specialising in South Australian workers’ compensation law.
For help, call 08 8443 4888 or email [email protected].