Johnston Withers Lawyers has been representing injured workers in relation to their workers compensation claims for over 70 years. We act for workers funded by the State WorkCover Scheme and those who have claims under the Comcare Scheme.
Our workers compensation lawyers in Adelaide and Regional South Australia are sensitive to the stress placed on injured workers as a result of their injuries and act in an understanding and professional manner. We have a long established history of fighting to ensure injured worker’s rights are respected, including their right to comprehensive rehabilitation. We have taken WorkCover to the Tribunal on many occasions and have been successful in upholding the rights of injured workers.
We can also represent partners in death claims and have on many occasions successfully obtained either a lump sum payment or ongoing payments to ensure financial security for them and their partners.
Workers Compensation Claims
You may be entitled to a claim for compensation and other benefits under the Return to Work Act 2014 (SA) if you have suffered an injury or illness arising out of or in the course of your employment and your employment was a significant contributing cause of that injury/illness. (If the injury is a psychiatric injury e.g. depression or anxiety, then the injury must arise out of or in the course of employment and the employment must be the significant contributing cause of the injury).
If your claim for compensation is accepted you will be entitled to the following:
- Weekly payments of income support;
- Reasonable and necessary medical treatment and care;
- Lump-sum entitlements
Weekly Payments of Income Maintenance
If your claim is accepted and it is determined that you are unfit to perform your work duties you will be entitled to a maximum of 2 years i.e. 104 weeks of income maintenance payments. The first year will be paid at 100% of your average weekly earnings and the second year will be paid at 80% of your average weekly earnings.
If your claims agent (either Employers Mutual Limited, Gallagher Bassett or one of several self-insured employers) makes any decision which affects your entitlement to income maintenance payments, or if the assessment of your average weekly earnings is not an accurate representation of your income, we encourage you to contact us for advice upon receipt of these decisions. You have one month from the date you receive these decisions to lodge an Application for Review in the SA Employment Tribunal. In certain circumstances this time may be extended but that could be a matter for argument.
You are entitled to reimbursement of reasonable medical and like expenses whilst in receipt of income maintenance, and for a further 12 months once income support payments cease. If you did not lose any time from work for your injury and therefore never receive income support maintenance payments, then you are entitled to 12 months of reasonable medical and like expenses from the date of injury.
You are entitled to claim reasonable travel and accommodation necessary to receive treatment. You can claim for the cost of obtaining and maintenance of therapeutic aids and other items that promote rehabilitation which include services like domestic assistance, home modifications, massage, physiotherapy, gymnasium and hydrotherapy.
You can either fund treatment yourself and seek reimbursement from your claims agent, or you can seek pre-approval in the proper form.
Depending on when you require surgery there are specific applications which need to be made to the claims agent within a specific timeframe. You can seek pre-approval for surgery at any time within your medical expense entitlement period, however if your doctors have indicated that you may require surgery outside of this period then the appropriate application needs to be made before your entitlement period ends.
We encourage you to discuss the likelihood of requiring future surgery with your medical practitioners, and subsequently with a worker’s compensation lawyer so the application can be made in time to protect your interests. The circumstances of these applications have been the subject of a number of cases in the SA Employment Tribunal.
The Return to Work Act 2014 (SA) provides for lump-sum compensation relating to any permanent impairment you suffer as a result of your work-related injuries.
There are two types of payments:
- Non-economic loss payment – pursuant to Section 58 of the Act. This is available to workers who have an injury which is assessed as having a 5% whole person impairment or greater (but there is no entitlement for a psychiatric injury); and
- Economic loss payment – pursuant to Section 56 of the Act. It is available to workers who have an injury with a Whole Person Impairment of between 5% and 29% inclusive (but there is no entitlement for a psychiatric injury or for noise induced hearing loss).
You are only entitled to one permanent impairment assessment per claim, and therefore it is important it is done correctly and that all possible related injuries are assessed. You cannot have your assessment until such time as your treating medical practitioners have determined that your injuries are stable (also known as having reached maximum medical improvement).
This process can be complex, and given it’s ‘once and for all’ nature we again encourage you to contact a workers compensation lawyer to seek advice with regards to the permanent impairment assessment process, before requesting an assessment from the compensating authority.
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 indexed annually for subsequent years;
- Treatment, care, and support services over the course of your lifetime;
- A payment for non-economic loss.
Pending an assessment of permanent impairment (e.g. the injury may not be currently stable or have reached “a stage of maximum medical impairment”), provided there is evidence to show that your injuries are likely to be 30% or more whole person impairment, you can make an application to be categorized as an ‘interim seriously injured worker’ meaning you get the benefits of a seriously injured worker until such time as your injures have reached stability and you have had your permanent impairment assessment. If you are in his situation contact us for further advice.
Injured Worker’s Right to Suitable Duties
Under Section 18 of the Return to Work Act 2014 (SA) an injured worker who has an accepted claim can now make an application to the South Australian Employment Tribunal to order an employer to provide suitable employment within a reasonable time.
To make an application of this kind you need to be (or have been) incapacitated for work as a result of the work injury, have sought employment with your pre-injury employer by a notice in writing and the employer has failed to provide the requested employment.
You should seek legal advice about making an application of this nature from our solicitors in Adelaide.
Injuries Occuring Before 1 July 2015
If you have an injury that occurred before 1 July 2015, then the “transitional provisions” set out in the Return To Work Act 2014 will apply. These provisions are complex and we recommend that you obtain legal advice about how these provisions might apply to your injury. If you have not received a lump sum payment for non-economic loss for your injury, then you remain entitled to do so however you are only entitled to a non-economic loss lump-sum for being assessed with a 5% whole person impairment or greater.
If you do achieve an assessment of 30% or greater whole person impairment you will continue to receive income support until retirement age, as well as payment of reasonable and necessary medical expenses for the remainder of your life.
How To Make a Claim
As soon as possible after you sustain an injury a claim for Workers Compensation should be made. You should not delay in seeking medical formal advice and always report your injury to your employer as early as possible.
A claim for compensation can be made by completing the Return to Work SA claim form and providing it either to your employer or directly to the relevant claims agent.
If your claim is rejected you should contact a worker’s compensation lawyer as soon as possible as there are strict time limits in which to dispute the decision.
Frequently Asked Questions
What does a workers compensation lawyer do exactly?
A workers compensation lawyer will provide you with advice on your entitlements under the relevant workers compensation legislation, in South Australia this is the Return to Work Act 2014 (SA).
This scheme contains many time limitations for when certain entitlements are available to you as the injured worker. The scheme also dictates when certain applications and claims need to be made, for example a future surgery application needs to be made before the end of your medical expense entitlement period.
A workers compensation lawyer will not only provide you with advice about your entitlements but will actively assist you in lodging relevant claims and applications to ensure that your entitlements are maximised, and applications are made before the time limitation periods.
Further, a works compensation lawyer will represent you in the South Australian Employment Tribunal when and if the relevant compensating authority/insurer makes a decision about your claim that you do not agree with and you wish to dispute. They will assist you with obtaining evidence by way of witness statements and specific medical evidence to support your claims and disputes.
Each injured worker who has a claim accepted under the Return to Work Act 2014 (SA) in respect of physical injuries, is entitled to an assessment to ascertain what your whole person impairment level is which then translates to lump-sum compensation. This is a once-and-for-all assessment in which the injured worker only gets one attempt at. A workers compensation lawyer will assist in this complex assessment process from start to finish to ensure the lump-sum compensation entitlements are maximised.
In what situations is it worthwhile getting a workers compensation lawyer?
There are many steps to a works compensation claim, including;
- Lodging the claim;
- The determination of claim process;
- Applications for medical treatment including surgery if needed;
- Disputes in respect of any determinations made about your claim (i.e. average weekly earnings disputes, rejection of medical expenses, rejection of initial claim, rejection of consequential injuries);
- Permanent impairment assessment once injuries are stable to determine lump-sum compensation.
It is important to seek legal advice at any stage along the process, even including from the outset to assist with lodging your claim.
When a determination is made by the compensating authority/issuer in respect of your claim, you have 28 days from receipt of the determination to issue a dispute in the SA Employment Tribunal. Therefore, if you receive a determination that you do not agree with, or you are concerned about it is important to obtain legal advice as soon as possible and certainly before 28 days passes.
How can I maximise my workers compensation settlement?
Maximising your workers compensation settlement can be done by:
1. Ensure that your injury is reported to your employer, and your doctor and treating specialists such as psychologists, physiotherapists and chiropractors as soon as possible.
2. If you develop new injuries which you think may be related to your initial injury, or related to treatment of your initial injury (i.e. medication induced side effects), it is very important to notify your treating specialists as soon as possible, as well as your lawyer so that the relevant additional claims can be made.
3. Lodge a claim for compensation as soon as possible following the injury. The steps to lodge a claim can be found on the Return to Work SA website (https://www.rtwsa.com) . Alternatively you can contact Johnston Withers lawyers and we can provide advice on lodging your claim.
4. Keep records of any and all time required off work as a result of your injuries.
5. Keep records of any and all ‘out of pocket’ medical expenses, including travel to and from medical appointments in respect of your work-related injuries.
6. Obtain legal advice.
What qualifies as emotional distress in workers compensation? And how is emotional stress proven?
In order to satisfy the criteria for a successful claim for compensation arising from a psychological injury you must:
a. Have a diagnosable psychiatric condition (stress alone or emotional distress will not qualify);
b. Employment needs to be the significant contributing cause of our diagnosable psychiatric condition; and
c. The psychiatric condition must not have occurred due to reasonable administrative action taken in a reasonable manner by your employer.
It is important to seek medical advice and treatment for these injuries, so that the opinion of medical experts can be obtained to established the diagnosis and cause of your psychiatric condition.