Return To Work provides valuable protection to workers and their employers in the event of a workplace-related injury or disease. Through return to work, injured workers can receive weekly payments to cover loss of earning capacity, payment of medical expenses and vocational rehabilitation expenses, where necessary, to assist them return to work.
As from 1st July 2015 the Return To Work Act 2014 replaced the Workers Rehabilitation and Compensation Act 1986.
Listed below are some key points arising from the changes to the laws.
- The Workers Compensation Tribunal will now be known as the South Australian Employment Tribunal (or SAET)
- The commencement of the new Act and new Tribunal was 1st July 2015.
- Return To Work SA is responsible for administration of the scheme, which was previously the ‘Workcover Corporation’.
- Legislation focussed on recovery and return to work.
- Safety net is based on the Federal minimum wage which is currently $21.38 per hour or $812.60 per 38 hour week as at July 1st 2022.
- Injured workers who are likely to be incapacitated for work for more than four weeks will have a recovery/return to work plan which employers must support.
- Return To Work Co-Ordinator is to have an active role in recovery and return to work.
- Injured Workers in SA will have entitlements to:
~Medical expenses
~Weekly payments or suitable alternate duties
~Lump sum for non eco loss
~Lump sum for economic loss
*Generally workers will have entitlements for weekly payments for 2 years and medical expenses for a further 12 months after weekly payments end.
- Support and services for workers deemed to be “serious injured workers”
(Section 21 (2) – Return To Work Act 2014) that being “A seriously injured worker is a worker whose work injury resulted in permanent impairment and the degree of whole person impairment has been assessed under Division 5 for the purposes of this Act to be 30% or more” may require
~Income maintenance paid up to retirement age
~Lifetime care and support (medical, allied health, home support etc)
~No obligations to return to work, but supported if wish to return to work
~Can access redemptions for income support, subject to agreement
~Can access common law for economic loss
~Provision for the Lifetime Support Scheme to manage those workers who are seriously injured
- For less seriously injured workers
~Early intervention and return to work focus
~100% of notional weekly earnings (NWE) for 0-52 weeks
~80% of NWE for 52-104
~A further 12 months of care and support (medical, allied health, home support etc) once income support ceased
~Early triaging leading to effective workplace needs for retraining and job seeking support
~Option to access a redemption of weekly payments by agreement between the worker and RTWSA.
- Lump Sum Payments (could be available for)
~A lump sum payment (non-Economic loss) for physical injuries where the whole person impairment (WPI) is 5% or greater
~An additional lump sum (economic loss) for physical injuries where the whole person impairment (WPI) is 5% or greater and less than 30% (not available for hearing loss or psychiatric claims)
~The maximum lump sum payment for death will be made to a workers partner(s) and children regardless of dependence
~One assessment for WPI
- Review of the reforms – An independent review is required to commence 3 years after the commencement of the new scheme, including specific consideration of dispute resolution.
- Transitional Provisions – If you were injured prior to July 1st 2015 then your claim is under the Workers Rehabilitation and Compensation Act 1986. In general this means
~For the purposes of an existing injury the period after which the entitlement to medical expenses ceases is July 1st 2016 or one year after weekly payments end.
~Partially incapacitated workers should be able to continue to claim weekly payments for up to 104 weeks from 1st July 2015. The rate of payments will depend on the period over which the injured worker had received weekly payments under the WRC Act prior to 1st July 2015. If they are on payments after 1st July 2015 then we believe they are entitled to the 104 weeks paid at either 100% then 80%, or at 80% for 104 weeks.
~The economic loss entitlement does not apply to existing injuries (clause 43 Transitional Provisions)
~(Clause 44 of Transition Provisions) is of greatest concern to workers who have been injured prior to 1st July 2015 and where a determination has been made in respect to one body part. A further claim cannot then be made for other physical injuries arising out of the same trauma.
- What are my rights as an injured worker?
As part of the return to work process, members have rights including:
~Make a claim for compensation
~Have prompt decisions made regarding your claim
~Have a decision made about provisional liability within seven calendar days (in most cases) of a claim for compensation being made
~Choose or change your doctor
~Have someone else with you as support at any meeting to talk about your claim. Eg- Union Representative
~Have all personal information kept confidential
~Get advice before signing anything
~Be provided with a copy of your return to work plan and be consulted during its preparation
~Have an interpreter present at meetings, appointments or over the phone
~Use an advocate, seek legal advice at any time and choose to be represented by a solicitor or an employee advocate (may include your union representative or health and safety representative)
~Lodge a complaint with your claims agent, self-insured employer and/or Return To Work SA
~File a notice of dispute with South Australian Employment Tribunal (SAET) to review decisions made about your claim
~Ask for a second opinion about medical issues
~Be treated with dignity and respect
~Have your cultural practices respected
~Be kept updated on the progress of your claim
- What are my responsibilities?
As part of the return to work process, members have the following responsibilities:
~Report your injury to your employer as soon as possible
~Get treatment for your injury
~Be actively involved in your treatment and return to work plan
~Comply with the requirements of a return to work plan (if you have one)
~Do suitable tasks your doctor says you are fit to do
~Attend an examination by a doctor (for an assessment only) or workplace rehabilitation provider nominated by your case manager. Remember these doctors are only permitted to examine, assess and report. Treatment is always by a doctor of your choice.
~Advise your case manager if you change your address or phone numbers
~Advise your case manager of any earnings you receive while you are in receipt of weekly payments
~Attend an appointment of an independent medical examiner if this has been organised by your case manager
Please note failure of a worker to fulfil their responsibilities may result in a claim being rejected or may impact entitlement to weekly payments.
General Comment
This information as indicated is a general guide at the time of writing.
As with any new laws interpretations may differ and until cases are tested in the tribunals and courts the information is provided in good faith but may be altered at any stage.
Further information regarding Return To Work can be found on the Return To Work Website.