Features of the Workers Compensation scheme in South Australia

Under section 35 of the Workers Rehabilitation and Compensation Act 1986, a worker who has suffered a compensable disability is entitled to weekly payments for all periods of incapacity from work. Under section 32 of the Act, a worker is entitled to be compensated for costs reasonably incurred as a consequence of their compensable disability. The types of expenses usually covered by this section are payment of GP visits, physiotherapy, x-rays, surgery and travel.

“Worker” is defined in section 4 of the Act:
Work done under a contract of service (whether or not as an employee);
Self employed worker;
Former worker;
Legal personal representative of a deceased worker;
Prescribed classes of volunteers.

A disability is compensable if it arises from employment. Depending on the circumstances, this can include disabilities that occur when a worker is on their lunch break or when the worker is travelling for purposes connected with their employment. On the other hand, a disability might not be found to be compensable if it resulted from the worker’s serious and wilful misconduct. Both physical and psychological disabilities may be compensable, but different criteria apply to psychological disabilities.

Based upon the limited information contained in the claim documents, the compensating authority determines the worker’s claim – the claim may be accepted, rejected, or deferred while the compensating authority investigates the claim further. Such investigation may include setting up surveillance of the worker or arranging to have the worker assessed by an independent medical examiner.

Rejected Claim
Where a worker disputes a rejected claim, the compensating authority is required to re-consider the claim and either accept the claim or confirm the rejection. If the rejection is confirmed, the parties will then go through a process of conciliation in the Tribunal. If possible, the parties will resolve the dispute at the conciliation stage. If the parties are unable to resolve the dispute, the matter will proceed to either arbitration or judicial determination. At arbitration or judicial determination, the decision maker will consider the evidence and make orders to confirm or set aside the original determination.

Accepted Claim
A claim may be accepted on either an ongoing basis or for a closed period. Alternatively, a claim may be accepted for medical expenses only. Where a claim is accepted for income maintenance, the worker will receive weekly payments instead of (or in addition to) wages. Where a worker has some level of capacity to work, they will receive a wage for the period/s in which they are working and weekly payments for the period/s in which they are unable to work.

Other provisions/entitlements under the Act
Section 43 of the Act provides that where a worker is assessed as having a permanent disability as a result of their injury or illness, they are entitled to a lump sum payment reflecting the extent of their permanent disability.

Sections 36 and 38 of the Act provide the framework for how and when a worker’s weekly payments may be discontinued or varied.

Section 42 of the Act provides that a worker and compensating authority may agree to redemption of the claim by way of a capital payment to the worker. A redemption agreement may take into consideration estimated future medical expenses and the worker’s future employment prospects.

Alternative duties and return to work
Under the Act, an employer must do all that it can to provide suitable duties to an injured worker. This may involve the worker returning to his/her pre-injury workplace duties with restrictions or an alternative position being offered to the worker. There are significant consequences if an employer unreasonably fails to provide suitable duties. In some cases the worker will only be able to work part hours each day as a result of his/her disability.