In Employment Law

Johnston Withers has been representing clients in South Australia for almost 70 years.  We have seen a number of different workers compensation schemes come and go during that time.

A new workers compensation scheme came into effect in South Australia on 1 July 2015.  This has a significant impact on workers compensation entitlements, regardless of when a worker suffered an injury or regardless of when a claim was made.  It raises a number of challenges for workers compensation lawyers in South Australia when giving advice to injured workers.

The Return to Work Act 2014 (SA) has replaced the former Workers Rehabilitation and Compensation Act 1986 (SA) in its entirety.  It has introduced the most significant changes to the workers compensation scheme for almost 30 years in this State.  The new Act applies to all workers regardless of whether or not that injured worker is currently receiving workers compensation benefits.  It applies to workers who have already made claims as well as those who may make them in the future, subject to certain exceptions.

New criteria apply for whether an injury is compensable

If an injury arose from a trauma or accident that occurred prior to 1 July 2015 then the test for whether that injury is compensable or not will be determined under the former Workers Rehabilitation Compensation Act.  However, for an injury that arose from a trauma which occurred after 1 July 2015 the new criteria will apply.  In such cases the employment must be “a significant contributing cause of the injury”.  In the case of a psychiatric injury the employment must be “the significant contributing cause of the injury”.  This new wording is likely to make it harder for workers who are injured in the future to have their claims accepted.

Generally, the entitlement to weekly payments ceases after 2 years

One of the most important changes which has come into effect under the Return to Work Act and which will affect all workers regardless of when the injury occurred, is that an entitlement to weekly payments will cease after 2 years from the date on which the incapacity for work first occurs, regardless of whether, for part of this time, the worker has returned to work in any capacity or not.  One exception to this may be a situation where surgery is being undertaken to treat a work-related injury, after that period of 2 years, in which case payments may be made for a further 13 weeks only.

Another exception to this cut-off date is in relation to workers who have suffered an injury prior to 1 July 2015 and are receiving weekly payments as at that date.  In such cases the cut-off date will be 30 June 2017.

A ‘seriously injured worker’ can be paid for more than two years

Weekly payments may however be continued to be paid to a “seriously injured worker”.  This is a new concept.  A “seriously injured worker” is defined to be a worker whose work injury has resulted in permanent impairment and who has been assessed as having a whole person impairment of 30% or more.  This is a very high threshold and most workers won’t have such an entitlement.  In practice it will be very difficult for a worker to achieve a whole person impairment assessment of 30% or more unless they have a very substantial injury and impairment.  A “seriously injured worker” will continue to receive weekly compensation payments and medical expenses up until normal retirement age or the age of 65, whichever is the lesser.

There are new guidelines for assessing impairment

The assessment of ‘whole person impairment’ will take place under the new Impairment Assessment Guidelines published by the SA Government.  The assessment will only be permitted by an accredited medical specialist.  New Guidelines have also been introduced to assess psychiatric impairment.

The entitlement to medical expenses is now limited

Under the former WorkCover legislation, even if the worker’s weekly payments were discontinued, a worker was still entitled to reimbursement of reasonable medical and like expenses for so long as the disability continued.  Under the new Return to Work Act however, any entitlement to medical expenses will generally cease if a worker has not had an entitlement to receive weekly payments in relation to a work injury for a continuous period over the previous 12 months (There are certain exceptions to this and the transitional provisions are quite complex.)

Workers with a permanent impairment can still be compensated for non-economic loss. 

Workers who suffer a permanent impairment in relation to physical injury and who achieve a whole person impairment of 5% or more, will continue to be entitled to receive a separate lump sum payment for non-economic loss.  This will be assessed according to the Impairment Assessment Guidelines.  The content of those Guidelines has changed in certain respects from the previous Impairment Assessment Guidelines.  As with the former legislation, injured workers will still not be entitled to a lump sum payment for psychiatric injuries.

There is now one assessment only

It is important to note that now only one whole person impairment assessment may be made in respect of all injuries arising from the same trauma.  This means, if a worker has already had an assessment of permanent impairment arising from an accident, but other injuries from the same accident have later become apparent, the worker is not likely to be able to obtain a whole person impairment assessment for those subsequent injuries or impairments. There is however, a 12 month window of opportunity from 1 July 2015 onwards to obtain a further assessment.  Again, you should obtain legal advice about this.

Some workers can also receive a lump sum for economic loss

The Return to Work Act also introduces a new concept for those who are assessed as having a whole person impairment between 5% and 29%.  Those persons who are not deemed to be “seriously injured workers”, will be entitled to a further lump sum payment for economic loss according to a scale, assessing:

  • the level of permanent impairment;
  • the age of the injured worker;
  • the hours worked as at the date of injury.

This entitlement will not apply however, in respect of assessments for psychiatric injury or noise-induced hearing loss.  It will only apply to injuries suffered after 1 July 2015.

The emphasis is now on getting injured employees back to work

An important benefit for injured workers under the new Return to Work Act is that there will be a much greater onus on employers to provide alternate employment for injured workers.  If an employer fails to provide suitable employment which is requested by an injured worker within a reasonable time, then that worker can apply to the new SA Employment Tribunal for an Order that the employer provide suitable employment.  There are also more expanded provisions which may be sought in Recovery/Return to Work plans.  Again, further legal advice should be obtained from one of our workers compensation lawyers about this.

It’s wise to get advice!  

There are a number of other important features of the new Return to Work Act that may be relevant to an individual worker’s situation.  The transitional provisions in particular of the Return to Work Act are in some cases difficult to interpret having regard to particular cases.

The above information is of a general nature only and may not be relevant to all cases involving injured workers in South Australia.

If you are unsure as to how the new Return to Work Act may affect you, it is very important that you consult a workers compensation lawyer as to the effect that the new legislation will have on your particular claim and the circumstances of your injury.

If you need advice about a workers compensation matter, please contact Graham Harbord or any other members of our injury claims team on 8231 1110.

 

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