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Workers Compensation

Who can make a claim?

Only a worker is entitled to workers compensation. Worker includes an employee in the common law sense (see Employment) and genuine independent contractors in prescribed industries (building, cleaning, transport, taxi and entertainment) who meet criteria fixed by regulation.

South Australian Country Fire Services (SACFS), South Australian State Emergency Services (SASES) and marine rescue volunteers may also be entitled to workers compensation under Schedule 1 of the Return to Work Act 2014 (SA).

How to make a claim

A worker should give notice of an injury to the employer as soon as practicable after sustaining the injury. This can be done either verbally or in writing, although an official form must be completed if requested. Failure to give notice of the injury may affect a worker's ability to maintain a claim for compensation.

A claim for compensation should be made within six months of the entitlement to the compensation arising. Delay will not be a bar to the claim if the worker was not aware of the entitlement or how to pursue it, if there were other good reasons for the delay, or if the proper investigation of the claim was not prejudiced by the delay.

Generally the claim form must be given to the employer. If the employer is registered with Return to Work SA, it must forward the claim to it within five days.

Interim payments of income maintenance

The compensating authority may make interim payments, pending final determination of a claim, but must offer interim payments if a claim has not been determined within 10 business days of lodgement. If on a final determination of a claim the worker was not entitled to the interim payments they are recoverable as a debt [Return to Work Act 2014 (SA) s 32].

Investigation and determination of the claim

The compensating authority has broad powers to investigate the claim. This may include obtaining reports or medical notes from the injured worker’s doctors, referring the worker to an independent medical expert for examination, or engaging an investigator to interview the worker and other witnesses.

Generally, the claims agent or self-insured employer should decide whether to accept or reject the claim within 10 business days, but the time for making the determination will depend on the extent of the investigations that are required.

Application for Expedited Decision

If there is unreasonable delay in deciding the claim, the worker can lodge an Application for an Expedited Determination in the South Australian Employment Tribunal. On such an application, the Tribunal has the power to give directions to resolve the delay or to make the appropriate decision itself [Return to Work Act 2014 (SA) s 113]. Legal costs of $576 ( for 2015) may be payable by a compensating authority for an application that proceeds to a short hearing.

Compensability

To be eligible for compensation a worker must have suffered an injury. Injury includes a physical or mental injury, a disease, disfigurement and death.Mental injury includes impairment of a mental faculty, but does not have to be a diagnosable psychiatric illness.

Generally, to be compensable, an injury must have been sustained either whilst working, or as a result of the employment.

Aggravations or recurrances of pre-existing injuries or diseases are compensable when the employment contributed to the aggravation.

Meaning of employment

Employment includes attendance at the workplace, at an educational institution for work-related education, at a place to receive medical treatment or recovery/return to work (rehabilitation) services, and journeys for work purposes [Return to Work Act 2014 (SA) s 7(5)].

Generally speaking, injuries sustained whilst travelling to and from work and home, in which no duty of employment is being undertaken, are excluded [s 7(8)]. In recognition of this many occupational superannuation schemes and the Public Service Association have taken out insurance to cover their members for such injuries.

Psychological injuries

A psychological injury is also described as a psychiatric or mental injury. If it involves pure mental harm without any physical injury, it will only be compensable if the employment was the significant contributing cause , and the injury was not caused wholly or predominantly by reasonable action (of various prescribed kinds) taken by the employer in a reasonable manner [Return to Work Act 2014 (SA) s 7].

Income maintenance payments

A worker will be entitled to income maintenance if incapacitated (partially or wholly) as a result of the compensable injury, and earning less than the worker’s average weekly earnings rate.

Average weekly earnings

Generally, a worker’s average weekly earnings rate will be calculated by reference to the worker’s average earnings over the 12 months before the disability [Return to Work Act 2014 (SA) s 5]. This includes lost income from a second job. A different approach may be taken if a simple arithmetical calculation does not produce a fair average due to the shortness of the period of employment.

Overtime payments will be included if there was a reasonable expectation of overtime continuing at the date of injury (a regular pattern of overtime is not required).

The average weekly earnings of a worker who is covered by an industrial award or agreement cannot be less than the rate under the award or the agreement.

Incapacity

Incapacity means that the worker is restricted in his or her ability to fully perform all of their work duties, as a result of the injury. Even if the worker is able to perform work duties the worker will be incapacitated for work in the legal sense if the worker’s ability to sell his or her labour on the open labour market is reduced as a result of the injury.

Duration of payments

An injured worker, who is not a “seriously injured worker” as defined, is entitled to income maintenance for only two calendar years from the date of first entitlement to weekly payments, even if there has been a return to work and no entitlement for part of the two years [Return to Work Act 2014 (SA) ss 4(11), 39].

For the first 52 weeks the worker is entitled to 100% of the difference between his or her average weekly earnings rate and the amount earned, if any, and for the next 52 weeks 80%.

A worker who uses their accrued leave entitlements while waiting for a claim to be accepted, is entitled to have those entitlements reinstated by their employer.

The employer must pay the first two weeks of compensation.

A worker may be entitled to a further 13 weeks of weekly payments for any pre-approved surgery [ss 40, 41].

Seriously injured worker

A seriously injured worker is a worker who has been assessed as having a permanent whole person equivalent impairment of at least 30% [Return to Work Act 2014 (SA) s 21]. The assessment must be conducted in accordance with the prescribed method under the Act [s 22]. This requires separate assessments for physical and psychological injuries.

After two years a seriously injured worker is entitled to 80% of the difference between their average weekly earnings and any earnings, until retirement age [s 41] .

Reduction or discontinuance of income maintenance

A worker’s income maintenance can be reduced or discontinued only in accordance with section 48 of the Return to Work Act 2014 (SA).

This section sets out the grounds on which payments may be reduced or stopped (such as a reduction in the pattern of overtime, increasing earnings in alternate work or self-employment, fully returning to work, ceasing to be incapacitated, breaching mutuality), and the period of notice that must be given to a worker before payments are changed.

No notice is required for discontinuance at the end of the two year period of incapacity, that applies to workers who have not been assessed as seriously injured.

In most cases the compensating authority must give fourteen days notice of the discontinuance of income maintenance payments, if the worker has been receiving weekly payments for up to one year, or 28 days notice in any other case.

Breach of mutuality

One of the grounds on which income maintenance payments may be stopped is if the worker breaches mutuality. A worker may breach mutuality by engaging in serious and wilful misconduct, or unreasonably resigning from the job. Other circumstances in which an employee may breach mutuality are described in [Return to Work Act 2014 (SA) s 48(3)].

Medical expenses

Any necessary medical or like expense that is reasonably incurred as a consequence of a compensable work injury should be paid by the compensating authority, whether or not the worker is still working [Return to Work Act 2014 (SA) s 33].

A worker’s entitlement to medical and like expenses ends one year after returning to work or one year after ceasing to receive weekly payments of compensation. This limit does not apply to seriously injured workers or to any therapeutic appliance required to maintain a worker’s capacity [s 33( 20)]. Before losing their entitlement to medical expenses a worker can apply for pre-approval of later surgery expenses [s 33(21)].

Medical expences includes treatment costs in hospital, doctors’ fees, pharmaceutical expenses, therapeutic appliances and the fees of allied health professionals such as psychologists, dentists, physiotherapists, chiropractors and speech pathologists. Travel costs to and from doctors’ appointments are also payable. There is a prescribed per kilometre rate for travel expenses in a private vehicle.

A worker can claim reimbursment after incurring expenses, or they can instead apply to a compensating autourity for pre-approval before incurring the expense [ s 33(17)]. A pre-approval application must be supported in writing by a treating medical practitioner. A decision must be made within one month [Return to Work Regulations 2015 (SA) reg 22].

Compensation for the cost of emergency transport is also provided [s34]. This is fixed at $277 for the year 2015.

Treatment protocols and frameworks may be issued to exclude some medical services from being compensable, unless they are justified by the circumstances of a particular case [s 33(10)].

Other services such as gym membership or home modifications may be paid if they are approved in advance in the worker's recovery/return to work plan (see below).

An injured worker is entitled to choose his or her own medical provider.

Lump sum compensation for permanent impairment

If an injury results in a permanent physical impairment, correctly assessed as the equivalent to a 5% Whole Person Impairment or more, the worker may be entitled to two lump sum payments under sections 56 and 58 Return to Work Act 2014 (SA).

One lump sum is for non-economic loss. The second is for economic loss, based on the extent of the Whole Person Impairment.

The economic loss lump sum is not available to a seriously injured worker (see above), as they have greater entitlements to weekly payments to offset the economic loss that results from a serious injury. The economic loss lump sum is calculated to take account of the age of the worker and their full time equivalent weekly hours of work. Younger full-time workers will have proportionately greater benefits than older part-time workers.

The assessment must be in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition) and the Impairment Assessment Guidelines 2015, gazetted on 12 March 2015.

The extent of permanent impairment must be assessed by a doctor who has been accredited to perform such assessments.

A worker must be given the opportunity to choose the assessor [paragraph 17 Impairment Assessment Guidelines]. Only one assessment can be made of all permanent injuries arising from or attributable to the same trauma or cause.

A worker is not entitled to be assessed for permanent impairment until their injury has reached maximal medical improvent, after all medical treatment has been completed.

No lump sum is payable for permanent psychological injuries.

These lump sum payments of compensation will not affect the worker’s entitlement to ongoing or further weekly payments of income maintenance or medical expenses.

As different doctors can make considerably different assessments of the same injury, specialist legal advice should be sought. Advice can also be given on choice of a suitable assessor.

A lump sum payment based on an assessment may be challenged in the Tribunal, where a second opinion can be arranged if appropriate.

Duty of pre-injury employer to provide suitable duties

The pre-injury employer is obliged to provide suitable employment for which an incapacitated worker is fit, even if the worker is only fit for reduced hours and for a different role [ Return to Work Act 2014 (SA) s 18(1)]. This obligation does not apply if the employer establishes it is not reasonably practicable to do so, or if the worker terminated their employment after becoming incapacitated.

A partially incapacitated worker now has a right to seek an order from the Tribunal that the employer re-employs them in suitable alternate duties. The worker must first make a request of the employer. If suitable employment is not provided within one month of the request, the worker has one month to apply to the Tribunal. An extension of time may be granted. The Tribunal is required to consider the reasonableness of the employer being required to provide the employment, even on a graduated basis as to hours and duties.

This right applies to workers who had an existing incapacity at 1 July 2015.

Because this legal right is new to South Australia's workers compensation system, there are no legal precedents and some initial uncertainty about how section 18 will be applied by the Tribunal.

Some legal costs are payable by the employer to a worker if the application is successful. If the application fails the worker is entitled to some costs payable by the compensating authority, subject to not acting unreasonably. Costs of up to $2,866 (2015) may be awarded [Return to Work Regulations 2015 (SA) reg 12]. A higher rate of costs, based on 85% of the Supreme Court scale are payable in the event of an appeal.

Recovery, Return to Work (Rehabilitation)

There is an emphasis in the Return to Work Act 2014 (SA) on helping an injured worker return to work wherever possible, although it no longer uses the word rehabilitation.

The Act provides for a range of rehabilitation services, formalised in a recovery/return to work plan to assist injured workers to recover as best as possible and 'to restore the worker to the workforce and the community' [ss 23, 25].

Where an injured worker is likely to be incapacitated for work for more than 4 weeks, the compensating authority must prepare a binding recovery/return to work plan in consultation with the worker and where reasonably practicable, the worker's treating doctor. A plan may also be imposed in other circumstances.

A recovery/return to work plan may impose obligations on a worker and /or the employer.

If a worker fails to participate or cooperate in the establishment of a plan, or fails to comply with an obligation under a plan, the worker's income maintenance payments may be discontinued.

Recovery/return to work services may include fees for training and educational courses, and the provision of other equipment or services to assist a worker cope with the injury, even where those services are not focussed on returning the worker to work. This can include home help, garden maintenance, and even the costs of a special bed or chair. A worker may request specific equipment, services or training as part of a rehabilitation plan or program.

A worker may dispute decisions about the nature and scope of recovery/return to work plans by commencing proceedings in the Tribunal, as explained below [s 97].

Redemption payments

In limited circumstances sections 53 and 54 of the Return to Work Act 2014 (SA) allow an injured worker to reach an agreement with the compensating authority for payment to the worker of a lump sum to finalise all ongoing and future entitlements to income maintenance and/or medical expenses. This is known as redemption.

The effect of redemption is to finalise and extinguish for all time the compensating authority's liabilities for income maintenance and/or medical expenses.

Redemption can be reached only by negotiation. The compensating authority cannot force the worker to agree to redemption and the worker cannot force the compensating authority to pay any particular amount by way of redemption. Whether there is a redemption payment, and the amount of any such payment, are matters for agreement and cannot be fixed or reviewed by a court or tribunal.

A redemption of a compensating authority’s liability for income maintenance may affect the worker’s present entitlement, or a future entitlement to income maintenance for any further work injury. Legal advice should be sought if any deduction is applied.

To date the ATO has taken the view that redemption payments are not taxable.

A redemption payment may result in a Centrelink preclusion period during which the worker will not be entitled to receive Centrelink payments. The length of that period will depend on the total amounts received by the worker by way of lump sum compensation and redemption. Centrelink may also be entitled to recover, from the redemption monies, benefits that it has made in the past.

The Department of Human Services - Child Support will be informed of the settlement and may be entitled to recover any monies owing from the redemption.

If the worker lives in Housing Trust accommodation, a redemption payment may affect worker’s liability for rent.

Before a redemption agreement can be completed, the worker must obtain professional advice about the effects of the redemption, financial advice regarding the investment or use of the redemption monies, and a certificate from a doctor that the extent of the worker’s incapacity for work can be determined with a reasonable degree of confidence.

The compensating authority is liable to pay prescribed fees for this professional and financial advice.

Professional advice about redemption is usually provided by a lawyer or union representative familiar with workers compensation claims. Such advice should include such matters as:

  • whether or not the redemption monies will be taxable;
  • the effect of the redemption payment on the worker’s entitlement to social security benefits;
  • the effect on any future injuries; and
  • the effect of the redemption on the worker’s ability to recover future medical expenses from Medicare or private health insurer.

When considering whether or not to agree to redemption, legal advice should always be obtained.

Compensation for death

Where a worker dies in the course of the worker’s employment, or because of a compensable injury, the worker's domestic partner or children may be entitled to compensation including:

  • lump sum compensation (for deaths this is $482 014 as at 2015, indexed annually);
  • Income maintenance payments based on the worker’s average weekly earnings and the extent of the dependency;
  • funeral expenses (capped at $10 172 as at 2015); and
  • cost of counselling.

This is a complicated area and legal advice should always be sought.

Reports from treating doctors

The worker's treating doctor should provide information regarding the condition and treatment of the worker only if authorised by the worker to do so. It would normally be in the interests of an injured worker to give an authorisation as this usually speeds up processing of the claim. If the worker incurs a fee for obtaining her or his own report from the treating doctor or a specialist, the compensating authority should pay this cost.

All clinical records of a treating health practitioner may be accessed by a compensating authority if there is a legal dispute over compensation rights in the South Australian Employment Tribunal.

Access to claims file

A worker has a right to copies of documents relevant to their claim on written request to the compensating authority. Exclusions apply to documents related to investigations of dishonesty and communications between a compensating authority and its lawyers [Return to Work Act 2014 (SA) s 180].

Independent medical examinations

The compensating authority can ask an injured worker to submit to a medical examination.

The purpose of the examination is assessment of the condition, but not treatment of it.

If the worker unreasonably refuses, income maintenance payments can be suspended until the examination takes place. The compensating authority must pay the examination cost and any costs incurred by the worker in attending.

The worker is entitled to receive from the compensating authority a copy of the medical report prepared by the medical practitioner.

Disputes in the South Australian Employment Tribunal (SAET)

Decisions made by the compensating authority in relation to a workers compensation claim, including decisions about recovery/return to work services, weekly payments, lump sum payments and medical expenses, can be challenged by a worker or employer by filing a Notice of Dispute with the South Australian Employment Tribunal. No fee is payable for lodging a Dispute.

The dispute should be commenced within one month of receiving notice of the disputed decision. Extensions of time may be possible.

The Tribunal will list the matter for a compulsory conciliation conference. At the same time the Tribunal will ask the compensating authority to reconsider the disputed decision. If the compensating authority varies the decision and the worker is not satisfied with the variation, the worker may then lodge a Notice of Dissatisfaction.

At this conference a Conciliation Officer will assist the parties to resolve or narrow the dispute by agreement.

If agreement cannot be reached, the dispute will be referred for judicial determination (trial) before a presidential member of the Tribunal. Usually at judicial determination, lay (non-expert) evidence is given by written statements and expert evidence is given in the form of written reports. Witnesses will be cross-examined (questioned) and the parties will make their arguments.

At the conclusion of the hearing the Tribunal will decide whether the compensating authority’s decision should be confirmed, varied or set aside.

The worker is entitled to be legally represented at conciliation and at judicial hearings.

Legal costs

Generally, where a worker seeks advice or assistance from a lawyer in relation to a workers compensation claim, the worker is not entitled to recover his or legal costs from the compensating authority.

A worker is entitled to recover legal costs from the compensating authority for work that relates to a dispute in the South Australian Employment Tribunal, whether or not the dispute is ultimately successful.

The maximum amount that a worker may recover for legal costs up to the conclusion of the conciliation stage of a dispute, is prescribed by regulation ($2 866 in 2015).

For work performed after the dispute is referred for judicial determination, the worker may recover legal costs to a maximum of 85% of the Supreme Court Scale.

A worker may not be able to recover legal costs if the worker acted unreasonably, frivolously or vexatiously in relation to the dispute. If the proceedings were frivolous or vexatious the worker may be ordered to pay some or all of the compensating authority, or employer’s, legal costs.

Some lawyers who specialise in workers compensation claims will represent injured workers for this fee and without charging any costs on top.

Rule 98 of the South Australian Tribunal Rules provides that a representative must not charge at a rate greater than the Supreme Court scale (including ‘no win no fee’ agreements) unless there are exceptional circumstances.

Fraud investigations

Compensating authorities actively investigate any suspected fraudulent claim. If an investigator wishes to question a claimant legal advice should first be obtained.

Other sources of income support

Where weekly payments of compensation have not yet begun, or have stopped because of a dispute between Return to Work SA and the worker, or the worker is otherwise without payments, she or he may apply for sickness benefit from Centrelink. If the worker later recovers weekly payments of compensation, Centrelink will recover any payments that it has made (see Pensions, Allowances and Payments).

A worker might also be able to claim income protection insurance payments. Often workers have income protection insurance through their superannuation funds.

Workers Compensation  :  Last Revised: Fri Jul 3rd 2015
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