Workers Compensation

The compensation rules have changed for injured workers

Are you an injured worker seeking lump sum compensation? The assessment rules have changed. TGB senior associate Christie Tsoubarakis explains how it could effect you,

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If you’ve been injured at work and are seeking lump sum compensation you need to know about legislative changes that could effect your entitlements. TGB senior associate Christie Tsoubarakis explains how it could effect you.

In South Australia, on July 1, 2015, the Workers Compensation legislation changed with the introduction of the Return to Work Act 2014. Given the changes to how lump sum compensation is now assessed, it is wise to get legal advice before finalising your permanent impairment entitlements.

When should I pursue lump sum compensation?

The timing of pursuing lump sum compensation for permanent injury is important given you can now have only one assessment for permanent impairment. A worker’s injury or injuries must have reached maximum medical improvement before they can be assessed. This is often after all medical treatment, including surgery, has finished. Therefore, it is important to consider whether there will be surgery in the future that will impact the level of Whole Person Impairment assessed.

Whole Person Impairment is where the degree of your impairment is expressed as a percentage. The concept provides for compensation for the permanent impairment of any body part, system or function to the extent to which it permanently impairs you as a whole person.

Lump sums for non-economic and economic loss

If a work-related injury results in a permanent impairment that is assessed as a Whole Person Impairment of 5% or more, then you may be entitled to a lump sum for non-economic loss and economic loss. The non-economic loss lump sum is based on the Whole Person Impairment only, whereas the economic loss lump sum considers Whole Person Impairment, your age and full-time equivalent hours of work per week. For this reason, younger workers who were full-time when they were injured will have a greater economic loss lump sum than an older worker working part-time at the time of their injury.

The economic loss lump sum is only available to workers who sustained an injury on or after 1 July 2015.

If your level of Whole Person Impairment is 30% or more you may be considered as a seriously-injured worker. You will have greater entitlements to weekly payments and medical treatment but can’t pursue an economic loss lump sum.

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

Unfortunately no lump sum is payable for permanent psychological injuries.

Who can assess my injury?

The Whole Person Impairment assessment must comply with the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition) and the Impairment Assessment Guidelines 2015. For this reason, assessment must be carried out by a doctor accredited under the Scheme. They can assess different categories including the upper limb, lower limb, spine, central nervous system, respiratory, digestive system, urinary or reproductive system, skin, ear, nose and throat and vision.

As the injured worker you can choose your assessor, but remember only one assessment can be made of all permanent injuries arising from or attributable to the same trauma or cause. This includes permanent injuries that develop later, but are because of the initial injury. It is, therefore, crucial to include all injuries when the assessment is carried out.

Why seek legal advice?

It is crucial you get legal advice before nominating a doctor because you are now limited to just one assessment. Different doctors can make considerably different assessments of the same injury. Tindall Gask Bentley Lawyers can advise you on the assessor most suitable for your injury.

The timing of the assessment is also important  to ensure all injuries are assessed. You may also want to consider delaying the assessment until future surgery is completed.

A lump sum decision made by the claims agent, or a worker’s self-insured employer in relation to a payment based on an assessment, may be challenged in the South Australian Employment Tribunal and, if appropriate, another assessment of impairment can be sought.

Tindall Gask Bentley Lawyers are experts in workers compensation, their expertise and knowledge able to guide you through the process every step of the way. Contact your nearest office today, or call us on (08) 8212 1077.