Employment Law

I’m back after a workplace injury but need more surgery. Can I receive payments even though my entitlements have ended?

Surgery after a workplace injury

It’s hard enough returning to work after a workplace injury. But what happens if you need more surgery? Can you still receive payments to ease the financial strain? TGB senior Associate Dimitra Bouras explains your options.

“How will I pay my mortgage and bills if I can’t work?” It’s a common fear among people who have suffered a workplace injury. Thankfully, if you are hurt at work, you are entitled to maintenance payments for up to 24 months, also known as the designated period.

But what happens if you’ve returned to work after an injury but now require more surgery and you’ve exhausted your entitlement to maintenance payments? Can you receive more payments while you are recovering?

The Return to Work Act 2014 allows for the compensating authority to approve surgery where the need arises and also where a worker has applied for the surgery to be undertaken in the future.  This application must be made prior to the worker’s entitlement to medical expenses coming to an end. Section 40 of the Act allows for supplementary support income for incapacity resulting from surgery after the end of the designated period and up to a maximum of 13 weeks.

The legislation appears straight forward for those workers injured and incapacitated after the Act was introduced on July 1, 2015.  What about those workers whose entitlements to income maintenance were discontinued under Section 36 of the old Act – the Workers Rehabilitation & Compensation Act 1986? Do they have any entitlement to claim income for any incapacity resulting from surgery?

The recent decision of Watkins v Return to Work SA [2017]SAET 8 dealt directly with that question.  This was a recent appeal by a worker against a decision that stopped her weekly payments on account of them being discontinued under the Workers Rehabilitation Act 1986, which meant she was not entitled to weekly payments under the Return to Work Act 2014 because her incapacity was due to surgery undertaken after July 1, 2015.

In that case, the worker suffered an injury, including a fracture to her right arm, on December 4, 2014.  She underwent surgery which involved the insertion of a metal plate and screws into her right arm.  She gradually returned to work and returned to her pre-injury hours in February 2015.  A determination was issued on February 11, 2015, under the old Act, ceasing her entitlements to income maintenance because she had returned to work.

However, the worker was soon suffering pain and discomfort and was approved and underwent further surgery to remove the metal plates and screws. By this time the Return to Work Act was in effect and the worker had no entitlement to income maintenance while they were off work recovering.

On September 1, 2015 the compensating authority accepted liability for the workers surgery however rejected a claim for income support on the ground that the applicant’s entitlement to weekly payments had ceased and on the basis that she was barred from claiming further weekly payments under the Return to Work Act.  The Court decided in favor of the compensating authority.  However, on appeal, a Court of three judges held that the surgery gave rise to a “new injury” under the Act and therefore fell outside the scope of cl37 of the transitional provisions which only applied to workers with an “existing injury”, meaning the worker was entitled to receive income maintenance payments for the periods that she was incapacitated as a result of the surgery. This decision is currently under appeal.

As you have read, the law surrounding injured workers and their entitlements can be complex. Tindall Gask Bentley lawyers are experts in workers compensation and are ready to guide you through the process. Call your nearest office to book an appointment today, or register your details here and we’ll be in touch soon.