If you have had an injury in the workplace in South Australia, you may be entitled to compensation. You should consider speaking with a lawyer early on in the process. The workers compensation and Return to Work scheme can often be difficult to navigate.
In South Australia, the WorkCover scheme was replaced by the Return to Work Scheme. This came into effect on 1 July 2015. If your injury was prior to this date, there may be some transitional provisions that apply to you. You should seek legal advice.
Workers compensation terminology can be confusing and difficult to understand. To assist you in navigating this, we have prepared a list of terms you may come across during the process along with their meanings.
This refers to the Whole Person Impairment Assessment. The purpose of this assessment is to determine the extent of your impairment. It is advisable that you seek legal advice before a Whole Person Impairment Assessment is arranged, as there are many matters to consider that may be of benefit to you, including choosing an assessor and the potential to combine certain injuries.
As part of a Whole Person Impairment Assessment, you will be assigned a percentage of impairment. This will then be used to determine the lump sum payment you will receive. To be eligible to receive a lump sum payment, your whole person impairment score must be at least 5%. The lump sum you receive will be affected by your age at the date of injury and your full-time equivalent weekly hours of work.
This refers to the period in which you are entitled to have your medical expenses funded by the insurer for your injury. The medical entitlements period will start from the date of injury and end three years after this date. Once this period ends, your medical expenses will no longer be funded by the insurer unless you are considered to be a “Seriously Injured Worker”.
To be deemed a Seriously Injured Worker, you must be assessed as having a whole person equivalent impairment of at least 30%. Psychological and physical injures are assessed separately. A Seriously Injured Worker is entitled to 80% of the difference between their average weekly earnings and any earnings until retirement age. All medical expenses, care and support (e.g. home support) will be covered until death.
This refers to Maximum Medical Improvement. A WPI Assessment cannot be completed unless an MMI certificate is produced by your doctor. In issuing this certificate, your doctor indicates they are satisfied your injury has stabilised – that is; it is unlikely to get better.
Future surgeries often refers to an application under s 33(21) of the Return to Work SA Act for a determination that it is reasonable and appropriate for surgery to be undertaken beyond the expiration of the Medical Expenses Entitlement Period for accepted injuries.
This refers to the South Australian Employment Tribunal.
This refers to an Independent Medical Examination. The compensating authority (often referred to as the “insurer”) can ask an injured worker to submit to an IME for the purpose of assessing the condition, nut not treatment of it. If a worker does not submit to an IME, the compensating authority can suspend income maintenance payments until the IME takes place. The compensating authority must cover the examination cost and the costs incurred by the worker in attending the IME. The worker is entitled to receive a copy of the IME report and is also entitled to have this report translated at no cost.
If you become injured at work, please contact us to discuss your rights.
If you become injured at work, you should give notice of that injury to your employer as soon as practicable. This can be done verbally or in writing, though it is generally best to provide this notice in writing. Failure to give notice to your employer may affect your ability to maintain a claim for compensation.
A claim for compensation must be made within six months of the entitlement to compensation arising, or in other words, 6 months from the date of injury. If you fail to make a claim within the six month period, you can still make a claim so long as you can demonstrate you were not aware of the entitlement or how to pursueit.You should seek specific advice in relation to this.
A WPI Assessment is undertaken if a worker has an impairment that results from a work injury. The purpose of this assessment is to determine the extent of the impairment, but can only be performed if the injury has stabilised – that is; reached Maximum Medical Improvement.
The degree of the WPI suffered by a worker will determine whether they are entitled to a lump sum payment. A worker must have a WPI score of at least 5% to be eligible for assessment of a lump sum payment. The final lump sum payment awarded will be affected by the worker’s age at the time of injury and full-time equivalent weekly hours of work. If a worker has a WPI score of 30% or more, they are considered to be a “seriously injured worker”. They will be entitled to lifetime care (medical expenses) for the rest of their life and income support until retirement age.
Only medical practitioners who are accredited under the Accreditation Scheme established by the Minister for Industrial Relations can assess an injured worker. Reports following a WPI Assessment must comply with the Impairment Assessment Guidelines. The following will be determined:
It is important to note that workers are only entitled to one WPI Assessment (except in very limited circumstances), so it is important to choose the timing wisely. Due to this, it is advisable that you seek legal advice before having a WPI Assessment.
To book an appointment with one of our lawyers, please contact us.
Decisions made by the compensating authority in relation to a workers compensation claim can be challenged by a worker or employer by filing a Notice of Dispute in the SAET. No fee is payable for lodging a dispute. Disputes had be submitted for a number of decisions including decisions about recovery/return to work services, weekly payments, lump sum payments and medical expenses.
There are strict timeframes in which you can lodge a review. This is one month from the date of the decision. Extension of time applications can sometimes be made.
Once a dispute is filed, the dispute is split into two stages – the “conciliation stage” and the “judicial determination stage”. During the conciliation stage, there will be a conciliation conference scheduled in the hope of narrowing the issues in dispute. The SAET will also ask the compensating authority to review its decision. In the event that the compensating authority varies its decision and you are still not satisfied, you can lodge a Notice of Dissatisfaction.
If a dispute cannot be settled at the conciliation stage, the matter will be referred to a presidential member of the SAET for “judicial determination” or trial. In ordinary circumstances, lay (non-expert) and expert witnesses can give evidence in the form of witness statements and reports. These witnesses can then be cross-examined.
A worker is entitled to be legally represented at the conciliation stage and judicial determination stage and can recover legal costs from the compensating authority in relation to this. This entitlement arises irrespective of whether or not the dispute is successful, but may be affected by the conduct of the parties. The amount a worker can recover for legal costs up to and including the conciliation stage is capped at $3,211 (in 2022). After the matter is referred for judicial determination, the worker can recover costs at a maximum of 85% of the Supreme Court Scale.
