Injured People

Work Injury: What Does it Mean to be ‘Seriously Injured’?

TGB Personal Injury Lawyer Tim White explains what it means to be considered 'seriously injured' under the new workers compensation laws.

New workers compensation laws are a cause for concern amongst employees due to the high threshold for ‘serious injury’ entitlements.

The introduction of the Return to Work Act 2014 raises a number of concerns regarding the limited and arbitrary period of time during which weekly payments and medical expenses are now payable, as well as the high threshold test for serious injury.

The new laws have resulted in a system whereby those who are injured, looking at long-term impairment and major permanent restrictions will be cut-off from workers compensation entitlements.

Return to Work SA provides that,

“From 1 July 2015, ReturnToWorkSA will provide lifetime treatment, care and support to workers with a serious injury.”                                     (rtwsa.com)

This lifetime of treatment, care and support includes:

– income support until retirement age

– 100% notional weekly earnings in the first year

– 80% notional weekly earnings for subsequent years

– lifetime treatment, care and support services

(rtwsa.com)

The definition of ‘seriously injured’ has become extremely important, and whether or not your injuries satisfy the definition, will determine whether you have any long term compensation entitlements.

Who is deemed to be a seriously injured worker?

Section 21 of the legislation defines who is a seriously injured worker.  In short, it is a worker who is assessed as having suffered a permanent impairment from a work injury where the degree of that permanent impairment has been assessed at 30% (or more), Whole Person Impairment (WPI).

The WPI assessment must be made in accordance with the approved guidelines, which are now the AMA 5th edition, with some specific modifications relevant to South Australia. The minority of injured workers, reportedly 1% or less of injured workers in South Australia, are likely to reach this threshold of 30% WPI.  Most injured workers in South Australia will not have the benefit of the entitlements that flow under the legislation from being assessed with as WPI of 30% or more.

To have some understanding how difficult the 30% level of impairment is to reach, I have listed below some examples of the type of injury that should reach this level of assessment:,

1. A neck injury that has resulted in a fracture of the vertebra, causing compression of 50% or more, which also results in severe upper extremity impairment;

2. A hand injury that involves the amputation of all fingers except the thumb;

3. A knee injury that results in a knee replacement, with a poor result from that surgical procedure;

4. Low back injury causing greater than 50% compression of a vertebral body, with unilateral neurological compromise into one or more legs;

These are all extremely serious injuries and reflect the very  high threshold that needs to be reached to meet the seriously injured criteria.

What are my entitlements if assessed as a Seriously Injured Worker?

Entitlements for a seriously injured worker include:

1. Reasonable medical expenses for life,

2. Weekly payments until retirement age ( at a reduced rate after 12 months),

3. Lump sum compensation in view of permanent injury,

4. Rehabilitation and training assistance.

What if I am not assessed as being seriously injured?

If an injured worker is assessed with a WPI of less than 30%, there are now fixed time limits for weekly payments and medical expenses.  Even if a worker remains incapacitated (totally or partially) for work once the fixed time limits are reached the entitlement to claim weekly payments or medical expenses ceases.  It is irrelevant if the worker continues to be incapacitated or needs medical treatment.

By way of example, if an injured worker was not in receipt of weekly payments as at 1 July 2015, namely their work injury had occurred prior to that date and they were no longer in receipt of weekly payments, the maximum period over which they can claim medical expenses is up until 1 July 2016.  Even if ongoing medical treatment or medication is required for a work injury after 1 July 2016, the injured worker will not be able to claim those costs through the workers compensation system.  They will need to pay for medical treatment or medication themselves.

If a worker was in receipt of weekly payments as of 1 July 2015, weekly payments are only payable for a maximum of two years, namely until 30 June 2017.  Once that time limit is reached, even if the person remains unable to return to work or continues to be partially restricted with their work duties, there will be no ongoing weekly payments beyond that date.

If an injured worker was in receipt of weekly payments as at 1 July 2015, their ability to claim medical expenses ends after 12 months, from when they last received weekly payments.  Again once that time limit is reached, even if medical treatment is necessary and required to limit pain or other symptoms due to the work injury, those costs will not be covered. The injured worker will need to claim the costs through Medicare or pay for it themselves.

Summary

Given these tough time limits within which benefits are payable under the new work injury regime and the high threshold test for ‘serious injury’, it becomes evident why many employees are increasingly concerned.

All workers across South Australia, who are injured during the course of their employment, deserve proper legislative protection.

It may be that ultimately amendments are required to be made to the Return to Work Act 2014, or other legislation, so that South Australian workers are adequately protected.

For further information or a free initial interview contact your nearest TGB office.