Five Common Workers Compensation Questions

TGB personal injury lawyer Olla Kutieleh answers some of the more common questions that arise in relation to workers compensation claims.

Sustaining an injury at work can lead to times of high stress and worry. There are many difficult things to think about before the law is even considered.

While you are focused on your rehabilitation, it is difficult not to think about your ongoing financial security, future work options and whether you should consider lodging a workers compensation claim.

Below I have answered five of the most common questions I am frequently asked when first meeting someone who has been injured at work. These questions include:

1. How do I lodge a claim?

2. If my claim is accepted – what are my entitlements?

3. If I lodge a claim –can I lose my job?

4. Do I have to disclose a previous claim to a new employer?

5. Can I sue my employer?

It is important to remember we offer a free first interview for workers compensation issues so if you believe you may have a claim we are always available to talk the matter through with you and discuss your options.

1. How do I lodge a claim?

If you sustain an injury at work, you must notify your employer orally or in writing as soon as reasonably practicable after sustaining your injury.

Your formal claim for compensation should then be provided to your employer within 6 months of you sustaining your injury. This involves completing a ‘Return to Work Claim Form’ which can be found on the Return to Work website (https://www.rtwsa.com/media/documents/claim-form.pdf).

You may still lodge a claim after the first 6 months if the delay in lodging your claim is because you were unaware of your entitlements, you were unaware of how to lodge a claim or if there are any other good reasons for the delay.

Once your employer receives your Claim Form they must provide it to Return to Work within 5 business days. Return to Work must then make a determination to accept or reject your claim within 10 business days.

In order to have you claim accepted, essentially you need to have suffered an injury during the course of your employment (i.e. while you were at work) or as a result of your employment (for example, if you sustain a back injury at work as a result of the repetitive heavy lifting you are required to undertake). An ‘injury’ includes a physical or mental injury, a disease, disfigurement, aggravation or re-occurrence of a pre-existing injury or disease, and death.

2. If my claim is accepted – what are my entitlements?

In short, there are four entitlements under the Return to Work scheme, including:

Income maintenance payments

If you are incapacitated for work as a result of a work injury, either partially or totally, you should have an entitlement to income maintenance payments for a period of up to two years. The only exception is if you meet the criteria of a ‘seriously injured worker’ for whom the entitlement to income maintenance will continue until you reach retirement age.

Your income maintenance payments are calculated based on your average weekly earnings prior to your injury and should be paid at the full value of your average weekly earnings for the first 52 weeks of your claim. In the second year of your entitlement, you should receive 80% of the value of your average weekly earnings.

If you are totally incapacitated for work, you are entitled to the full value of your average weekly earnings entitlement – either at the 100% rate or the 80% rate depending on how many months has passed since your injury was sustained. If you are partially incapacitated for work and are only able to work reduced hours, then Return to Work should pay you the difference between what you are earning and the value of your average weekly earnings rate.

Medical Expenses

Payment of any necessary and reasonable medical and like expense incurred as a result of your work related injury should be paid by Return to Work. The entitlement to payment of medical expenses starts when your claim is first accepted and continues until 12 months after you have stopped receiving income maintenance payments.

This limit on the entitlement to payment of reasonable medical and like expenses does not apply to:

1. seriously injured workers;

2. to any therapeutic appliances required to maintain your capacity for work;

3. surgery where an application for pre-approval of future surgery costs has been made before your period of entitlement ends; and

4. services in relation to prescribed classes of injury where an application for pre-approval of such costs has been made before your period of entitlement ends;

Permanent Impairment

If your injury results in permanent impairment that results in a Whole Person Impairment of 5% or greater, then you may be entitled to a one off lump sum payment.

To know whether you have a 5% (or greater) whole person impairment, an assessment must be performed by an accredited specialist and in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (5^th edition) and the Return to Work Impairment Assessment  Guidelines 2015.

These assessments can be complex. It is important to be sure that the assessment has been performed correctly and that the assessing doctor has the correct information before performing the assessment. Accordingly, I recommend you seek legal assistance before undergoing an assessment.

Lump Sum Payment for Future Economic Loss

If your injury results in a whole permanent impairment assessment between 5% and 29% you should be entitled to further lump sum compensation payment for your loss of future earning capacity. This entitlement is calculated in accordance with a specific formula set out in the Return to Work Act and is available to all injured workers with an accepted claim except for those suffering from psychiatric injuries or noise induced hearing loss.

Redemption

In some instances, Return to Work may offer a lump sum payment to finalise your claim and conclude your future entitlements to income maintenance and/or payment of medical expenses. This is known as a redemption. There are serious considerations that must be made before you accept a redemption payment and I strongly recommend you seek legal advice if you have been offered a redemption payment.

3. If I lodge a Claim, can I lose my job?

Once an employer has been notified of your injury and your claim has been accepted. Your employer is generally unable to terminate your employment unless your injury has been sustained as a result of your own serious and wilful misconduct In fact, your employer has an obligation to:

1. Support your recovery and your return to work;

2. Provide you with suitable employment if you are able to return to work – this might include providing you with different duties within your qualifications or offering you reduced hours of work while you are recovering from your injury.

If your employer is not providing you with suitable alternative duties, an order can be sought from the South Australian Employment Tribunal that your employer returns you to work and provides you with suitable alternative duties.

An employer can only terminate your employment if:

1. Your employment is terminated on the ground of serious and wilful misconduct; or

2. At the time of termination, you are not complying with your obligations to try and rehabilitate and return to work and you are not receiving compensation for your work injury; or

3. Your worker’s compensation claim has been exhausted or the time for lodging a claim has expired.

Do I have to disclose a previous claim to a new employer?

Strictly speaking, unless you are asked, you do not have to volunteer to a new potential employer that you have had a previous work injury or other injuries.  However, if you are referred for medical assessment by your new potential employer and you are asked by the assessing doctor about any previous injuries then you should disclose those injuries to the doctor.

However, the underlying consideration here must always be your safety. It may be said that if you have an injury that may affect your ability to perform a particular role then you should disclose that to an employer as employees also have a responsibility to ensure their safety and the safety of others.

Can I sue my employer?

There are limited circumstances in which you can sue your employer in South Australia. In order to be eligible to sue your employer, you must first show:

– That your employer’s negligent conduct caused the injury or death of the worker;

– Your permanent impairment arising from the injury has been assessed as a whole person impairment assessment is 30% or greater;

– Your injuries did not arise out of a motor vehicle accident;

– You cannot sue your employer if your employer is a corporate body and you are a director as well as employee.

Suing an employer is a highly complex claim and can also impact on your entitlements under an accepted workers compensation claim. Given the complexity of such claims, if you think you have sustained an injury resulting from the suspected negligence of an employer, I recommend you seek legal advice as soon as practical.

Hopefully reading through the answers to these common workers compensation questions has reduced some of your stress and given you a clearer idea about how the workers compensation process works and how it will impact you if you are injured at work.

For further information or assistance with your workers compensation claim contact your nearest TGB location and speak with an experienced personal injury lawyer.