Workers Compensation Survival Kit – Part 5

In Part 5 of the Workers Compensation Survival Kit, Adelaide injury lawyer Mal Byrne writes pain and suffering, and lump sum payments.

Now, your workers compensation claim has been lodged and accepted.  You are on weekly payments or partial weekly payments depending on whether or not you have returned to some or all of your duties.  Your medical expenses are being paid.  You ask….. Is that all there is?  Well unfortunately, that is almost all that there is.  Justifiably, you ask, what about my pain and suffering?  What about everything I have been through?  I am going to have to live with this injury for the rest of my life.  Don’t I get something for that?

If you suffer a work injury that is permanent, you can apply for what is called a Section 58 (formerly s43 payment).  A Section 58 is a payment by Return to Work SA (formerly WorkCover) to injured workers for any permanent impairment that the worker has suffered to one or more body parts as a result of the work injury sustained.  The payment does not take pain and suffering into account.  The payment is for permanent impairment and only if that permanent impairment is 5% Whole Person Impairment or more under the AMA Guide to the Evaluation of Permanent Impairment.  The Section 58 payment is the only lump sum payment of money that a worker can receive for suffering the work injury.  Furthermore, Section 58 payments are only available to workers who suffer physical injury.  You cannot apply for a Section 58 payment if you have suffered a permanent psychiatric injury.

You only get one shot in the locker so to speak for a Section 58 payment for any one claim.  Hence, before you apply for a Section 58 payment, you need to be sure that your injury has stabilised.  That means that you need to have effectively exhausted all avenues of treatment including surgery and the doctors have to be at the point where they are telling you that there is nothing more that they can do to improve the situation.  Once you have reached that point, you should apply for your Section 58 payment.  Once again, I would not recommend applying for a Section 58 payment without the assistance of a lawyer.

It is unlikely that your Section 58 impairment will be assessed by your treating doctor, even your treating surgeon.  Only doctors who are accredited under the Permanent Impairment Guide can assess permanent impairment.  They must also be accredited to assess the particular injured body parts.  Unless you instruct a lawyer, the claims agent will choose the doctor who conducts the assessment.  While all doctors who perform these assessments are supposedly independent, my experience is that the difference in outcomes in doctors can be quite marked.

So, the claims agent has sent you to a doctor for a Section 58 assessment and that doctor has provided a report.  Once the report is provided, it has to pass peer review.  The claims agents have a panel of peer review assessors who will assess reports to see whether or not they comply with the Permanent Impairment Guide.   If the report is compliant, it will be passed back to the case manager who will then decide what to do next about the worker’s Section 58 entitlement.  If the report does not pass peer review, it will be sent back to the doctor who will have to amend it or correct it to make it compliant. The report will then be resubmitted for peer review and hopefully pass peer review the second time around.

Generally, the claims agent will determine a Section 58 permanent impairment claim based on the assessment of their own chosen doctors, although they might obtain a second opinion where the permanent impairment assessment is high.  If the worker takes the initiative and instructs a lawyer, the lawyer will contact the claims agent to get permission to arrange or agree a doctor for an independent medical assessment and then obtains an assessment that passes peer review, the claims agent will either determine the Section 58 claim based on that report or might get a second opinion from a doctor of their choosing.  If the difference between the two opinions is significant, there is a risk that the claims agent might determine the claim on the lower assessment which inevitably will mean that the issue will go to the SA Employment Tribunal.  If the difference between the two assessments is less than 5%, there is a chance that a compromise might be negotiated.  Please remember however that the assessment must be 5% whole person impairment or above.  Anything less than that means no payment at all.

If your assessment is 5% or more, the amount of compensation that you receive will be a fixed sum based on the percentage impairment and the year of the date of injury.  The scale starts at between $10,000.00 and $11,000.00 for 5% impairment and increases from there.  Unfortunately, whilst the lump sum payment amounts have improved since the changes to the law on 1 April 2009, they are still modest and in no way a proper reflection of any worker’s pain and suffering.

Part 6 of the Workers Compensation Survival Kit will deal with long term claims.  What do I have to do to get off the system?  Can the claims agent cut me off the system without my consent?

For a free initial interview about your workers compensation claim, contact us. TGB assists workers in South Australia, Western Australia and Northern Territory.