All employees and some contractors are entitled to compensation if they are injured or suffer a medical condition at work. Duncan Basheer Hannon has a team of solicitors who specialise in this field and will ensure that your rights are protected.

The South Australian Return to Work scheme (formerly WorkCover) can often be confusing and workers are not always fully informed. So what are your basic entitlements? …

In short, if you suffer a work related injury you can make a claim for:

  • Medical Expenses;
  • Income Maintenance; and
  • Permanent Impairment arising from your injuries.

For such entitlements to arise you must have an accepted claim. To protect your rights, you should always notify your employer of any work related injury as soon as practicable and lodge a claim for compensation within six months from the date of injury. Doing so will reduce the risk of dispute in accepting your claim, which can result in delay, stress and potential legal fees.

Medical Expenses

In addition to medical expenses incurred as a result of your work related injury, you are also entitled to be compensated for medical related expenses, including 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, or are necessary for rehabilitation. This can include domestic assistance, home modifications, child care and non-traditional treatment such as massage, gymnasium and hydrotherapy.

There are limits on the amount and types of expenses that will be approved and circumstances vary with any given claim. Entitlement is always subject to the proviso that the expenses incurred are reasonable. If you are uncertain or concerned about meeting the cost, you can seek pre-approval from your claims agent prior to incurring the expense. It is only in exceptional circumstances that the cost of services provided by family members will be reimbursed.

Income Maintenance

Under the Return to Work Act, you are entitled to income payments where it is determined that you are unfit to perform your work duties. You will need a prescribed medical certificate supporting your incapacity. If you are partially incapacitated and working reduced hours, you may be able to claim “top-up” payments to your assessed average weekly earnings. It is important to be aware that over time with prolonged incapacity, income payment amounts will diminish. Your fitness for work will be determined by your medically assessed capacity, not necessarily the work you either feel you can do or have been able to secure.

The Return to Work Act provisions on income maintenance can be confusing and can have significant impact on your financial wellbeing. If you are concerned about your income payments or have received a decision affecting your payments which you do not understand, you can contact your claims agent or seek advice from a compensation lawyer.

Permanent Impairment Claims

The Return to Work scheme (formerly the WorkCover scheme) provides for compensation for permanent bodily injury arising from your work injury in two ways. These payments used to be referred to as Section 43 lump sum payments.

There are two types of payments:

  1. A non-economic loss payment – this is sometimes called a pain and suffering payment and is the equivalent of the Section 43 assessment.
  2. An economic loss payment – this is new. It is available to workers who have an injury with a Whole Person Impairment of between 5% and 29%.

The most important consideration for both payments is the Whole Person Impairment (referred to as the WPI). In order to make a permanent impairment claim, the following are required:

  1. Your medical condition must be stable (often referred to as having reached maximal medical improvement).
  2. You must have been assessed by an accredited medical assessor as having a WPI of greater than 5%.
  3. The assessment is carried out in accordance with the Guidelines and generally the psychological injuries and psychological effects are not taken into account.

The WPI assessment is very important as it can only be carried out once and it is no longer possible to bring recurring claims for lump sum payments.

When should you Seek Legal Advice?

If you have an injury that will cause long term problems (longer than six months) then you should seek legal advice promptly. If the claims agent has made a decision about your WPI assessment then you should seek legal advice immediately, as time limits apply to dispute the assessment.

Employers Duty to Provide Employment

An injured worker can now make an application to the South Australian Employment Tribunal to order an employer to provide suitable employment within a reasonable time. In order to qualify for this you must 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 employment. You should seek legal advice about taking such an action.

Need advice? Just ask us a question.

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