Workers Compensation

I have sustained an injury. Am I eligible to receive compensation?

Providing that the injury sustained by you arises from your employment, or you developed an illness related to your work, then you may have a claim for compensation.

WorkCover claims do not arise from the common law but are determined by legislation. It is therefore not necessary to prove fault on the part of your employer.

However, in addition to a WorkCover claim you may also have a common law claim against a third party in relation to a workplace injury or illness. This would come about in circumstances where a third party was at fault in relation to the incident giving rise to your injury or illness. For example, faulty machinery may have caused your injury, and this may be the responsibility of the manufacturer of the machinery. Another common example is when you are involved in motor vehicle accident during the course of your employment and the other driver is at fault. If you succeed in a common law claim against the third party in relation to a work-related injury, it is important to understand that benefits paid or payable by WorkCover will be need to be paid to WorkCover from the settlement monies associated with the third party claim.

How do I lodge a claim for compensation?

After you are injured at work you are generally required to complete a Notice of Injury and Claim for Compensation form. Your employer will complete an Employer Report Form. These forms are forwarded by the employer to Employers Mutual, the claims processing agent for WorkCover, and this initiates your claim. Procedures may differ in relation to an exempt employer.

Is there a time limit for lodging a claim?

A WorkCover claim must be lodged within six months of your injury having been sustained or your illness diagnosed. In certain circumstances, a claim will be accepted after the six-month period.

In relation to a common law claim associated with a workplace injury or illness, if you are over the age of 18 years then you have 3 years from the date of the work related incident to lodge and settle a claim with the insurer. If the claim fails to settle, court proceedings must be filed before the 3 year anniversary of the incident. This is known as the “statute barred date”. If you are late in filing proceedings you will not be able to claim compensation without making an application to the court which may, in certain circumstances, grant an extension of time.

If you are under the age of 18 years at the time of injury then you have 3 years from the date of your 18th birthday to issue court proceedings in relation to your claim. However, at any time after the injury your parent or guardian can instruct solicitors to bring a claim for compensation on your behalf. It is not always necessary to wait until you are 18 years old. Much depends on the nature and long term consequences of your injuries.

What might I be paid by way of compensation?

Workers’ compensation is restricted to income maintenance payments (in circumstances where you are unable to work), payment of medical and rehabilitation expenses and a lump sum payment for non-economic loss if you have suffered a permanent impairment as a result of your injury. There are criteria that need to be met before payments can be made, particularly in relation to lump sum payments.

Income maintenance is based on a worker’s actual earnings in the 12 months prior to injury and extends to basic wages, shift allowances, over time, and superannuation salary sacrifice. An injured worker will receive 100% of the assessed income maintenance figure for the first 13 weeks that he or she is off work as a result of the injury or illness. Thereafter, there is a reduction to 90%, followed by a further reduction to 80% after 26 weeks.

Medical and rehabilitation expenses extend to medical treatment, hospital services, physical therapies such as physiotherapy or occupational therapy, psychological therapy, pharmaceuticals, domestic assistance and personal care.

The lump sum payment will be determined by your assessed whole person impairment, which must be 5% or more and which does not extend to psychiatric injury.

If you also have a common law claim against a third party in relation to the work-related injury or illness then you may be entitled to various categories of compensation, known as “heads of damages”. Not all of the heads of damage may be applicable to you and will depend on your personal circumstances. Therefore, your entitlements may or may not extend to the following:

  • An amount for pain, suffering and loss of the amenities of life (that is the extent to which your ability to engage in sport, leisure activities and so on has been restricted). This amount will be based on a scale between 0 and 60, where 0 represents the most trivial injuries and 60 represents the most serious, short of death.
  • Where you have been incapacitated for work then, with the exception of the first week, you will be entitled to an amount of money equivalent to any past loss of earnings (excluding any taxation which would have been paid) and (if appropriate) an amount to cover any future loss of earnings or loss of future earning capacity.
  • Treatment expenses reasonably incurred at the recommended rates including the cost of hospital admissions, medical treatment, chiropractic therapy, physiotherapy, pharmaceuticals and rehabilitation, and an allowance for future medical treatment.
  • Where as a result of your injuries, a spouse, domestic partner, child or parent has been obliged to carry out domestic and personal services on your behalf then you will be entitled to make a claim for compensation for the voluntary services that were provided.
  • Where domestic services may be required as a result of any incapacity resulting from your injuries, then an award may be made for past and future paid services.
  • Likewise, if you required and/or will require the services of a personal carer, then an award may be made for the costs of such services.
  • In circumstances where you require equipment, aids and appliances, vehicle or home modifications by reason of your injuries, then you will be entitled to an award to cover the associated costs, together with the costs of future replacements, if applicable.
  • You are entitled to be reimbursed for travelling expenses incurred directly as a result of travelling to and from appointments for medical treatment.
  • A contribution towards your legal costs.

As we have stated above, it is important to understand that any benefits received from WorkCover will be need to be repaid to WorkCover from the settlement monies associated with the third party claim.

How does the claim get processed?

Unless your claim is complex, it should take approximately one month from submission of the claim form for the claims agent, Employers Mutual, or the exempt employer to accept or reject your claim. Generally, in more complex matters, the claims agent will obtain a medical report from your treating general practitioner or, in some situations, an independent medical assessment will be arranged.

If there is a delay in obtaining a determination, a worker can file an application at the Workers Compensation Tribunal.

If a determination is made that you do not agree with then you can file a “Notice of Dispute” at the Workers Compensation Tribunal within 30 days of the date of receiving the determination. The claims agent is then given 21 days to confirm or reconsider its decision. If the decision is confirmed a Conciliation Officer is appointed and the matter may then proceed to a Conciliation Conference with a view to the parties discussing and resolving the matter. If the matter fails to resolve, it can be referred to arbitration or directly for Judicial Determination. When we discuss your claim with you we will explain the procedures associated with, and the benefits of, arbitration and Judicial Determination. Decisions made at Judicial Determination can be appealed to the Full Bench of the SA Workers Compensation Tribunal.

How much will my claim cost?

Our professional fees and disbursements will be charged in accordance with the scale of costs prescribed by the Supreme Court Civil Rules 2006.

In the event of a dispute you will be entitled to a contribution to your costs from WorkCover or your exempt employer. The rules in relation to this are complex and will be discussed with you in more detail at your initial interview.

Centrelink, Medicare and private health insurance benefits: Will these need to be repaid if I receive compensation for my injuries?

If you received Centrelink benefits during the period when you were incapacitated by reason of your work-related injuries and prior to your claim being accepted then you may be required to repay such benefits on receipt of your compensation.

Likewise, if Medicare has paid certain medical services associated with your injury, or if you have claimed the costs of treatment from your private health insurer, you will need to repay these benefits on receipt of compensation.