Workers Compensation Survival Kit – Part 6

In Part 6 of the Workers Compensation Survival Kit, Adelaide injury lawyer Mal Byrne offers advice about getting off and staying off the workers compensation system.

You have suffered a serious injury.  You will never return to your pre-injury duties.  You are either not working at all or working reduced hours.  What does the future hold?  Will you be able to stay on weekly payments indefinitely?  If it is all getting too much, can you get off the system by taking a pay out?

If you are on weekly payments, they will be discontinued should you return to work and be in a position to earn your pre-injury earnings.  As advised in part 4, your payment can also be discontinued if you breach your rehabilitation obligations.  However, even if they are discontinued, they should be reinstated should you meet your obligations once again.

Workers injured after 1 July 2015 and in receipt of weekly payments will also have their entitlement to ongoing payments reviewed, but this can happen at any time prior to the expiry of two years from the date of injury.

Workers injured before 1 July 2015 will automatically be cut off weekly payments on 1 July 2017 (and medical expenses on 1 July 2018) unless the worker is classified as a “seriously injured worker”. The definition of seriously injured worker is a worker with a 30% whole person impairment based on either their physical or psychiatric injury, but not any combination of both. For workers injured after 1 July 2015, that worker will be cut off weekly payments at the 2 year anniversary of the work injury if not a seriously injured worker (3 years for medical expenses).

Under the law, Return to Work SA is permitted to offer workers what were previously called redemption payments or lump sum payments where the worker gets off the system and the claims agent are no longer required to pay the worker weekly payments and medical expenses.  These payments used to be negotiated between the worker and Return to Work SA. Many workers not considered to be likely to quality as seriously injured workers have already been offered and accepted redemptions. What the policy will be that Return to Work SA takes on redemptions after 1 July 2015 is unknown, and in particular, whether seriously injured workers will be offered redemptions.  Hence, the only way you can effectively ‘get off the system’ is to be either kicked off the system by the claims agent on the basis of your work capacity after either 2 years or 130 weeks or because you are not a “seriously injured worker”.  The only workers who can negotiate lump sum payouts at the moment are workers who are employed by exempt employers who have the discretion to negotiate redemptions at any time and are not bound by Return to Work SA policy.

At the moment, Return to Work SA’s position on redemptions is a matter of policy.  Redemptions are available under the law.  However, they can only be negotiated between the worker and the claims agent and Return to Work SA.  There is no capacity for the Workers Compensation Tribunal or any court to order Return to Work SA to pay a worker a redemption.  Either a redemption is negotiated or the worker stays on the system. Of course, a policy can always be changed. As seriously injured workers are entitled to weekly payments until 65 and medical expenses indefinitely, Return to Work SA may see the benefit of offering those workers redemptions to reduce their costs and allow the worker to get on with his/her life. Whether the amount offered is worth considering is another matter and a worker who receives a redemption proposal should consult a lawyer forthwith.

Part 7 of the Workers Compensation Survival Kit will cover What Compensation is available to families of a worker who dies from a work injury?

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