The Return to Work Act 2014, operative from 1 July 2015 has made substantial changes to the entitlements of injured workers.
Whereas previously once a work injury was sustained, as long as treatment was reasonable, the costs of the surgery would be paid. However, that has all changed.
Now the entitlement to future surgery depends upon a complex analysis both of the factual circumstances of an injured worker and the terms of the Return to Work Act.
If an injured worker in receipt of incapacity or weekly payments requires surgery now, then an application is required to be submitted in accordance with Section 33(17) of the Act.
However, if the same worker does not require the surgery urgently, but believes that the need for surgery does not arise until their weekly payments have ended and after the end of their medical expense entitlement period (i.e. one year after the end of the weekly payment entitlement period) then they must make an application in accordance with Section 33(21) of the Act unless:-
- They are a seriously injured worker.
- The surgery relates to any therapeutic appliance required to maintain the worker’s capacity.
- Or in very limited circumstances in relation to prescribed classes of injury where an application has already been made before the end of the entitlement period to medical expenses.
Section 40 of the Act also provides notwithstanding that an injured worker may have reached the end of their incapacity or weekly payment entitlements, but if future surgery is approved, then they may be entitled to supplementary income support comprising up to 13 weeks after the surgery. This therefore requires proof of incapacity as a consequence of the surgery.
In some instances, Compensating Authorities are not providing clear advice or misleading advice to injured workers. This can be to workers very significant disadvantage.
There is currently a high rate of disputation in the South Australian Employment Tribunal as to the provisions of Section 33(21) and the entitlement to Supplementary Income Support under Section 40 with a number of appeals pending and anticipated.