Sections 56 and 58 of the Return to Work Act 2014 (South Australia) (“the Act”) allow an injured worker to claim lump sum compensation in the event they suffer a permanent impairment as a result of a physical work injury.

The Act does not provide for lump sum compensation for permanent impairment arising from non-physical work injuries (for example, you cannot seek lump sum compensation under Sections 56 and 58 of the Act for permanent impairment arising from a psychiatric injury).

The lump sum entitlements provided in Sections 56 and 58 of the Act are in addition to an injured worker’s entitlement to claim income support (weekly payments of income maintenance) and payment or reimbursement of medical and like expenses.

As income support and medical and like expense entitlements are limited for most injured workers, it is important to make the most of your lump sum compensation claim.

An injured worker’s entitlement to lump sum compensation is based on the degree of Whole Person Impairment (expressed as a percentage of Whole Person Impairment) arising from the work injury, which must be assessed in accordance with Section 22 of the Act.

How are Lump Sums claims assessed?

Section 22 of the Act provides Guidelines (called the Return to Work Scheme Impairment Assessment Guidelines) which doctors must use when assessing the degree of Whole Person Impairment suffered by an injured worker.

The Guidelines contain chapters for various body parts and systems which provide methods to assess Whole Person Impairment. The methods vary from chapter to chapter, and take into account things like the diagnoses of the work injury, restricted range of motion in affected joints, pathology shown on radiological investigations, the nature of surgical treatment received for the work injury, etc.

The Guidelines allow the injured worker to select a doctor that assesses their worker injury, subject to two criteria:-

1. The doctor must be accredited under the relevant chapter(s) of the Guidelines; and
2. The doctor cannot have been involved in the treatment of the injured worker’s condition.

The medical assessment of Whole Person Impairment is commonly referred to as a “Permanent Impairment Assessment”.

Once the Permanent Impairment Assessment has taken place, the relevant ReturnToWorkSA Claims Agent or self-insured employer must consider the Permanent Impairment Assessment report and make a determination regarding the injured worker’s entitlement to lump sum compensation under Sections 56 and/or 58 of the Act.

The lump sum compensation payable under Section 56 of the Act is described as compensation for “economic loss”, and is based on;

• A Prescribed Sum, which is calculated based on the Whole Person Impairment percentage and calendar year of the work injury;
• An Age Factor, which is based on the injured workers age at the date of the work injury; and
• An Hours Worked Factor, which can have the effect of reducing the lump sum payable if the injured worker is working less than full time hours at the time of the work injury.

The lump sum compensation payable under Section 58 of the Act is described as compensation for “non-economic loss” is based solely on a Prescribed Sum, which is calculated based on the Whole Person Impairment percentage and calendar year of the work injury.

An injured worker must have a Whole Person Impairment of 5% or more to be eligible to receive lump sum compensation under Sections 56 and/or 58 of the Act.

Can I have more than one assessment?

Historically, injured workers have only been entitled to one assessment of permanent impairment arising from their injuries for the purposes of claiming lump sum compensation under the Act.  Amendments to the Act in August 2022 now allow an injured worker to seek a second/subsequent assessment of permanent impairment where another impairment from the same injury or cause develops or manifests itself at a later date, after the initial Permanent Impairment Assessment has been conducted and any lump sum entitlement has been determined.  That noted, where impairments arising from the same injury and/or cause are assessed later/separately, the total lump sum compensation payable can be substantially less (as compared to if they were assessed at the same time).

How do I make a claim?

The Permanent Impairment Assessment process required to make a claim for lump sum compensation can be complicated, and the financial outcome (in terms of your entitlement to lump sum compensation) can vary substantially depending on a number of factors including:-

1. The injuries and/or impairments the injured worker asks the ReturnToWorkSA Claims Agent or self-insured employer to include as part of the Permanent Impairment Assessment process;
2. The information that is provided to the assessing doctor before the Permanent Impairment Assessment takes place;
3. The timing of the Permanent Impairment Assessment;
4. The doctor selected to assess your permanent impairment;

How can DBH Lawyers help me with my claim?

In most cases, DBH Lawyers recommend certain investigations be undertaken before making a decision, to commence the Permanent Impairment Assessment process.  Those investigations typically include:-

1. Obtaining a complete copy of your workers compensation claims files. We can review those documents for relevant information like previous claims, previous determinations made by ReturnToWorkSA or self-insured employers, medical records, medical reports, etc;
2. Obtaining medical reports from treating doctors and specialists regarding their diagnosis of the work injury, radiological investigations conducted, treatment provided, specialist referrals provided, the prospect of further medical treatment, including surgical treatment, and injury stability and whether the work injury has reached Maximum Medical Improvement;

A lawyer who understands how the lump sum compensation process works can not only provide you with considered advice on what information should be obtained before commencing the Permanent Impairment Assessment process, but they can also help you obtain that information and liaise with the relevant ReturnToWorkSA Claims Agent or self-insured employer with a view to arrangements for the Permanent Impairment Assessment, including selection of the assessing doctor and the provision of information relevant to the assessment of the work injury.

Further, once the Permanent Impairment Assessment has taken place and the Permanent Impairment Assessment report is provided, a lawyer can provide advice on whether the report complies with the Guidelines and Act, what your entitlement to lump sum compensation may be (based on the Permanent Impairment Assessment report), and the steps you can take to progress your lump sum compensation to determination by the ReturnToWorkSA claims agent or self-insured employer.

What happens if I am not happy with the assessment?

If you are dissatisfied with the determination of your lump sum entitlement, a lawyers can provide you with advice on your right to apply to the South Australian Employment Tribunal for a review of the lump sum determination, your prospects of success, and what steps may need to be taken to progress the matter to successful finalisation before the Tribunal.

An injured worker’s entitlement to lump sum compensation is an important part of their claim.  In some cases, it is the only real “compensation” injured workers receive for their work injury.

It is worthwhile giving serious consideration to engaging a lawyer to help you with your lump sum compensation claim, as a lawyer will be able to help you:-

1. Understand the Permanent Impairment Assessment process;
2. Progress the Permanent Impairment Assessment arrangements with a view to maximising your Whole Person Impairment percentage and your entitlement to lump sum compensation;
3. Secure a favourable lump sum determination from the ReturnToWorkSA Claims Agent or self-insured employer and payment of the lump sum compensation award;
4. Provide advice on your review rights and help you progress your matter through the Tribunal review process (in the event you wish to challenge the lump sum determination).

In most cases, DBH Lawyers can and will act for an injured worker in relation to a lump sum compensation claim on a “no win, no fee” basis – meaning:

• you are only required to pay legal costs to DBH Lawyers once the lump sum compensation award has been paid by the ReturnToWorkSA Claims Agent or self-insured employer; and
• if you do not receive lump sum compensation as part of your workers compensation claim, you are not required to pay legal costs to DBH Lawyers.

DBH Lawyers offers an “obligation free” first interview (either by phone, via video conference or “in person”, which ever you prefer) for workers compensation lump sum claims.

If you would like to discuss your workers compensation lump sum claim with DBH Lawyers, please contact us on FREE CALL 1800 324 324 or by following this link: Contact the team | DBH Lawyers