There are 3 types of relief that may be available to compensate an employee who is unable to work due to an injury in the work place. These depend on the circumstances in which the injury is received and the seriousness of the injury. The compensation will also go towards covering any specific economic loss or damage suffered. The forms of relief are:
An employee may only keep one form of benefit and will usually need to refund any other benefits received.
This topic covers workers compensation claims under the Return to Work Act 2014 (SA) and the Safety, Rehabilitation and Compensation Act 1988 (Cth).
The government authority responsible for administering the Return to Work Act 2014 (SA) is Return to Work SA, formerly called the WorkCover Corporation.
Common law claims against employers have effectively been abolished. This chapter briefly explains some claims that may be made.
For the circumstances in which social security benefits are paid, see Payments - Centrelink and Veterans.
Workers who are injured at work may be entitled to compensation under the Return to Work Act 2014 (SA). The Return to Work Scheme aims to do everything possible to allow an injured worker to return to work, with a focus on early intervention and support following a workplace injury.
Most employers are registered with Return to Work SA. Return to Work SA contracts out the management of claims relating to registered employers to one of two claims agents, Employers Mutual Limited (EML) or Gallagher Bassett (GB).
Some larger employers are self-insured and manage their own claims. Injured workers have the same entitlements whether they are employed by a registered employer or by a self-insured employer.
Return to Work SA, its claims agents and self-insured employers are called compensating authorities.
Workers who are injured at work may be entitled to payment of one or more of the following:
Only a worker who usually works in South Australia or is based in South Australia is entitled to workers compensation under the Return to Work Act 2014 (SA).
Worker includes an employee in the common law sense (see Employment) and genuine independent contractors in prescribed industries (building, cleaning, transport, taxi and entertainment) who meet the criteria fixed by regulation.
Labour hire workers may also make a claim under the Act. The labour hire business (business providing labour hire services to a host organisation) is ultimately the worker’s employer, and should be adequately insured for any workplace injury that a labour hire worker could incur at a host organisation.
South Australian Country Fire Services (SACFS), South Australian State Emergency Services (SASES) and marine rescue volunteers may also be entitled to workers compensation under Schedule 1 of the Return to Work Act 2014 (SA).
A worker should notify their employer of their injury as soon as practicable (within 24 hours if possible) after sustaining the injury [Return to Work Act 2014 (SA) s 16]. This can be done orally or in writing, although an official form must be completed if requested. Failure to give notice of the injury may affect a worker's claim for compensation.
A claim for compensation should be made within 6 months of the entitlement to the compensation arising [s 30]. Delay will not prevent a claim if the worker was not aware of the entitlement or how to pursue it, if there were other good reasons for the delay, or if the proper investigation of the claim was not prejudiced by the delay.
Generally a claim form must be given to the employer. If the employer is registered with Return to Work SA, it must forward the claim to Return to Work SA within 5 days [s 30].
The compensating authority may make interim payments, pending final determination of a claim [s 32(1)]. It must offer interim payments if a claim has not been determined within 10 business days of lodgement [s 32(2)].
If, on a final determination of a claim, the worker was not entitled to the interim payments, they are recoverable as a debt [s 32(3)].
The compensating authority has broad powers to investigate the claim [s 31]. This may include obtaining reports or medical notes from the injured worker’s doctors, referring the worker to an independent medical expert for examination, or engaging an investigator to interview the worker and other witnesses.
Generally, the claims agent or self-insured employer should decide whether to accept or reject the claim within 10 business days [s 31(4)]. The time taken will depend on the extent of the investigations that are needed.
Application for expedited decision
A worker who believes there has been unreasonable delay in deciding their claim can lodge an application for an expedited determination in the South Australian Employment Tribunal [Part 7].
The Employment Tribunal may give directions to resolve the delay or may make the decision itself [s 115]. Legal costs and preparation costs (indexed annually) may be payable by a compensating authority for an application that proceeds to a short hearing [Return to Work Regulations 2015 (SA) reg 47].
To be eligible for compensation, a worker must have suffered an injury. Injury includes a physical or mental injury, a disease, disfigurement and death [Return to Work Act 2014 (SA) s 4]. Mental injury includes impairment of a mental faculty. It does not need to be a diagnosable psychiatric illness.
Generally, to be compensable, an injury must arise from employment [s 7]. It must have been sustained while working or as a result of employment.
Aggravations or recurrences of pre-existing injuries or diseases are compensable when the employment significantly contributed to the aggravation [s 7(3)].
Employment includes attendance at the workplace before, during and after work hours, at an educational institution for work-related education, at a place to receive medical treatment or recovery/return to work (rehabilitation) services, and journeys for work purposes [Return to Work Act 2014 (SA) s 7(5)].
Generally speaking, injuries sustained whilst travelling to and from work and home, in which no duty of employment is being undertaken, are excluded [s 7(8)]. In recognition of this, many occupational superannuation schemes and the Public Service Association have taken out insurance to cover their members for such injuries.
In the case of South Australia v Roberts [2018] SASCFC 25, a worker’s injury was deemed to have occurred in the course of employment, whilst the worker was temporarily working at a rural location. This location was not the worker’s usual place of work, and the worker suffered from a disease as a result of mosquito bites whilst working at the rural location. The case established the principle that employment must be a significant (meaning important or influential) cause of the injury.
In Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91, an injury sustained while a worker was working from home and on an authorised break was accepted as arising out of the worker's employment.
A psychological injury is also described as a psychiatric or mental injury. If it involves pure mental harm without any physical injury, it will only be compensable if the employment was the significant contributing cause, and the injury was not caused wholly or predominantly by an employer's reasonable action taken in a reasonable manner (such as a legitimate demotion, transfer or dismissal) [Return to Work Act 2014 (SA) s 7].
The case of South Australia v Van Hattem [No 2] [2020] SASCFC 45 settled the principle that while employment does not need to be the only significant cause of psychiatric injury, employment must be the most significant cause of the injury.
Chief Justice Kourakis at paragraph [2] summarised the principle as follows:
The requirement of s 7(2)(b) of the Return to Work Act 2014 (SA) (the RTW Act) that ‘employment was the significant contributing cause’ necessarily requires the identification of a cause which can be described as ‘the significant cause’. Only if employment is that significant cause, is the injury compensable. A psychiatric injury may have a number of causes which would individually qualify as a ‘significant cause’ within the meaning of that expression in s 7(2)(a) of the RTW Act. Nonetheless, s 7(2)(b) of the RTW Act requires the identification of that one of those causes which is, relative to the others, ‘the significant cause’. Ultimately, therefore, ‘the significant contributing cause’ is the most significant of the contributing causes.
A worker will be entitled to income maintenance if incapacitated (partially or wholly) as a result of the compensable injury, and earning less than the worker’s average weekly earnings rate.
Generally, a worker’s average weekly earnings rate will be calculated by reference to the worker’s average earnings over the 12 months before the injury [Return to Work Act 2014 (SA) s 5]. This includes lost income from a second job. A different approach may be taken if a simple arithmetical calculation does not produce a fair average due to the shortness of the period of employment.
Overtime payments will be included if there was a reasonable expectation of overtime continuing at the date of injury. A regular pattern of overtime is not required.
The average weekly earnings of a worker who is covered by an industrial award or agreement cannot be less than the rate under the award or the agreement.
Incapacity means that the worker is restricted in their ability to fully perform all of their work duties as a result of the injury. Even if the worker is able to perform work duties the worker will be incapacitated for work in the legal sense if the worker’s ability to sell their labour on the open labour market is reduced as a result of the injury.
An injured worker, who is not a “seriously injured worker” as defined, is entitled to income maintenance for only 2 calendar years from the date of first entitlement to weekly payments, even if there has been a return to work and no entitlement for part of the 2 years [Return to Work Act 2014 (SA) ss 4(11), 39].
For the first 52 weeks the worker is entitled to 100% of the difference between their average weekly earnings rate and the amount earned, if any, and for the next 52 weeks 80% [s 39].
A worker who uses their accrued leave entitlements while waiting for a claim to be accepted is entitled to have those entitlements reinstated by their employer.
The employer must pay the first 2 weeks of compensation.
A worker may be entitled to a further 13 weeks of weekly payments for any pre-approved surgery [ss 40, 41]. This also applies if a worker requires surgery after the income support period is ended.
A seriously injured worker is a worker who has been assessed as having a permanent impairment equivalent to a whole person impairment of 35% (for a physical injury) or 30% (for a psychiatric injury) [Return to Work Act 2014 (SA) s 21]. The serious injury threshold for physical injuries increased from 30% to 35% on 1 January 2023 and applies to all final assessments conducted after that date.
The injury must be assessed in accordance with the method prescribed by the Act [s 22]. This requires separate assessments for physical and psychological injuries.
After 2 years a seriously injured worker is entitled to 80% of the difference between their average weekly earnings and any earnings, until retirement age [s 41].
Interim seriously injured worker
The compensating authority may make an interim decision that a worker is to be taken to be a seriously injured worker if it appears the worker's injury will result in permanent impairment or whole person impairment of 35% (for a physical injury) or 30% (for a psychiatric injury) [s 21].
An interim decision will end once the worker has undergone assessment, or if it appears that, due to a material improvement in the worker’s likely degree of whole person impairment, they are no longer likely to be seriously injured [s 21(4)].
Before ending an interim decision, the compensating authority must give the worker at least 3 months written notice of its intention to end the interim decision, and allow the worker a reasonable opportunity to provide information that shows that it is appropriate for the interim decision to continue [s 21(4a)]. Independent legal advice should be sought in these circumstances.
Stabilisation and terminal illnesses
Under s 22, the degree of permanent impairment is not usually assessed until the injury has stabilised.
Amendments to the Return to Work Act 2014 (SA) that commenced on 1 December 2024 clarify that an injury will be taken to have stabilised if the worker's condition is unlikely to change substantially in the next 12 months, with or without medical treatment, and regardless of any temporary fluctuations in the condition [s 4(18)].
Further, an injury need not have stabilised and may be assessed if the work injury is a terminal condition that is incurable and will cause death [ss 4(19), 22(7)].
From 17 October 2022, a worker who is classified as seriously injured can elect to receive a single lump sum payment for economic loss under s 56, in lieu of ongoing weekly payments until retirement age. This process is outlined in section 56A of the Return to Work Act 2014 (SA). A redemption of medical expenses for seriously injured workers is also available. An election to receive lump sum payment must be made in a manner and form approved by Return to Work SA.
Any lump sum payment received for economic loss will be reduced by the amount of weekly payments already paid to the worker, after the initial 2 year (104 week) income maintenance period ends. If an election is made to receive a lump sum, the worker will not be entitled to ongoing any weekly income support payments, or recovery or return to work services, for the same work injury or injuries, or another impairment arising from the same cause as the work injury or injuries for which the election is made.
An election to receive a lump sum payment for economic loss cannot be made unless the worker has received:
The compensating authority is liable to pay prescribed fees for this professional, financial and health practitioner advice.
If a worker is assessed as having a whole person impairment level of 50% or more, the South Australian Employment Tribunal must approve the election of lump sum payment. The Tribunal needs to be satisfied that receiving a lump sum payment for economic loss (instead of weekly income support payments) is in the worker’s best interests. The Tribunal may take into account a report by a recognised health practitioner relating to whether or not the election is against the best interests of the worker [s 56A (11)].
A worker’s income maintenance can be reduced or discontinued only in accordance with section 48 of the Return to Work Act 2014 (SA).
This section sets out the grounds on which payments may be reduced or stopped (such as a reduction in the pattern of overtime, increasing earnings in alternate work or self-employment, fully returning to work, ceasing to be incapacitated, breaching mutuality), and the period of notice that must be given to a worker before payments are changed.
No notice is required for discontinuance at the end of the 2 year period of incapacity that applies to workers who have not been assessed as seriously injured.
In most cases the compensating authority must give 14 days' notice of the discontinuance of income maintenance payments, if the worker has been receiving weekly payments for up to one year, or 28 days' notice in any other case.
Income maintenance payments may be stopped if the worker breaches the obligation of mutuality. A worker may breach the obligation of mutuality by engaging in conduct such as unreasonably failing to submit to an examination or medical treatment and failing to participate in a return to work plan or undertake work offered to them that they are capable of doing [Return to Work Act 2014 (SA) s 48(3)].
Any necessary medical or like expense that is reasonably incurred as a consequence of a compensable work injury should be paid by the compensating authority, whether or not the worker is still working [Return to Work Act 2014 (SA) s 33].
A worker’s entitlement to medical and like expenses ends one year after returning to work or one year after ceasing to receive weekly payments of compensation [s 33(20)]. This limit does not apply to seriously injured workers or to any therapeutic appliance required to maintain a worker’s capacity [s 33(21)]. Before losing their entitlement to medical expenses, a worker can apply for pre-approval of later surgery expenses [s 33(21)].
Medical expenses includes treatment costs in hospital, doctors’ fees, pharmaceutical expenses, therapeutic appliances and the fees of allied health professionals such as psychologists, dentists, physiotherapists, chiropractors and speech pathologists [s 33(2)]. Travel costs to and from doctors’ appointments are also payable. There is a prescribed per kilometre rate for travel expenses in a private vehicle.
A worker can claim reimbursement after incurring expenses, or they can instead apply to a compensating authority for pre-approval before incurring the expense [s 33(17)]. A pre-approval application must be supported in writing by a treating medical practitioner. A decision must be made within one month [Return to Work Regulations 2015 (SA) reg 22].
Compensation for the cost of emergency transport is also provided [s 34].
Treatment protocols and frameworks may be issued to exclude some medical services from being compensable, unless they are justified by the circumstances of a particular case [s 33(10)].
Other services such as gym membership or home modifications may be paid if they are approved in advance in the worker's recovery/return to work plan (see below).
An injured worker is entitled to choose his or her own medical provider.
If an injury results in a permanent physical impairment, correctly assessed as the equivalent of a 5% Whole Person Impairment or more, the worker may be entitled to 2 lump sum payments under sections 56 and 58 of the Return to Work Act 2014 (SA).
One lump sum is for non-economic loss. The second is for economic loss, based on the extent of the Whole Person Impairment.
The economic loss lump sum is now available to a seriously injured worker (see above) under section 56A of the Return to Work Act 2014 (SA). The economic loss lump sum is calculated to take account of the age of the worker and their full time equivalent weekly hours of work. Younger full-time workers will have proportionately greater benefits than older part-time workers.
The Return to Work Act 2014 (SA) requires determinations of permanent impairment to be made in accordance with the prescribed Guidelines.
For assessments that occur on or after 1 August 2022, the assessment must be in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition) and the Impairment Assessment Guidelines (1st edition) 2015, gazetted on 12 March 2015. See the Return to Work SA website for more information and to download a copy of the Guidelines.
The extent of permanent impairment must be assessed by a doctor who has been accredited to perform such assessments.
A worker must be given the opportunity to choose the assessor [see chapter 17 of the Impairment Assessment Guidelines].
Previously, only one assessment could be made of all permanent injuries arising from or attributable to the same trauma or cause. However, inReturn to Work Corporation of South Australia v Preedy [2018] SASCFC 55, Justice Stanley explained at paragraph 71 that "the question of whether the worker is entitled to have those impairments assessed together or in combination to determine the degree of impairment depends either on whether the worker has suffered two work injuries arising from the same trauma,or whether the worker’s impairments are from the same injury or cause."
The Full Court of the Supreme Court applied this reasoning in Return to Work Corporation of South Australia v Summerfield [2021] SASCFC 17 and held that impairments from related injuries or causes are not to be disregarded in making an assessment of permanent impairment. Instead, the causal test permits an impairment from a consequential injury to be combined with an impairment from another injury where, as a matter of common sense, the impairments are so connected that the trier of fact is satisfied that the impairments are from the “same cause" (Stanley J at [20]).
Amendments to the Return to Work Act 2014 (SA) that commenced on 1 August 2022 codified the principles set out in the Summerfield decision regarding the combination of impairments.
However, if a worker has already had a whole person impairment assessment under s 22, and another impairment from the same injury or cause develops or manifests itself afterwards, then that other impairment will be assessed separately, and will not be combined in any respect (whether under s 22 or sections 56 or 58) with the impairment or impairments previously assessed. A subsequent impairment may instead be combined with any other impairment from the same injury or cause that has also developed or manifested itself after the earlier assessment. [s 22(10)].
The Act outlines a practical example, below:
A worker suffers impairments arising from injuries A and B which both arise from the same cause. The worker has those impairments assessed under section 22. After the assessment of the impairments arising from injuries A and B, the worker develops further impairments from injuries C and D which arise from the same cause as injuries A and B. The worker is entitled to be assessed for the impairment arising from injuries C and D and to combine the impairments from those injuries. However, the worker cannot combine the impairments arising from injuries C and D with the impairments arising from injuries A and B under this Act.
See also the Full Court of the Court of Appeal judgment in Woolworths Group Limited v Jackermis [2023] SASCA 31.
Impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury [s 22(8)(d)].
An assessment (or parts of an assessment) may be undertaken by more than 1 accredited medical practitioner and their assessments combined to create 1 assessment [s 22(9a)].
A worker is not entitled to be assessed for permanent impairment until their injury has reached maximal medical improvement, after all medical treatment has been completed. However, an interim seriously injured assessment can be made.
No lump sum is payable for permanent psychological injuries.
These lump sum payments of compensation will not affect the worker’s entitlement to ongoing or further weekly payments of income maintenance or medical expenses unless the threshold for a seriously injured worker is reached.
As different doctors can make considerably different assessments of the same injury, specialist legal advice should be sought. Advice can also be given on choice of a suitable assessor.
A lump sum payment based on an assessment may be challenged in the South Australian Employment Tribunal, where a second opinion can be arranged if appropriate.
The pre-injury employer is obliged to provide suitable employment for which an incapacitated worker is fit, even if the worker is only fit for reduced hours and for a different role [Return to Work Act 2014 (SA) s 18(1)]. This obligation does not apply if the employer can show that it is not reasonably practicable to do so, or if the worker left their employment after becoming incapacitated. It also does not apply if the employer can show they lawfully dismissed the worker for serious and wilful misconduct [s 18(2)].
A partially incapacitated worker may seek an order from the South Australian Employment Tribunal that the employer re-employs them in suitable alternate duties [s 18(5)]. The worker must first inform the employer in writing that they are ready, willing and able to return to work and provide an indication as to the type of work that might be suitable for them [s 18(3)]. The worker must also provide evidence of their capacity for work [s 18(4)]. If suitable employment is not provided within one month of the worker's request, the worker has one month to apply to the Tribunal [s 18(4d)]. These timeframes are intended to allow time for the employer and the worker to negotiate and reach a resolution if possible.
In deciding whether to make an order under s 18, the Tribunal will consider the reasonableness of the employer providing employment to the worker [s 18(5)]. For guidance as to how the Tribunal applies s 18, see Puhara v Return to Work SA (Flinders Adelaide Container Terminal) [2019] SAET 3 andWalmsley v Crown Equipment Pty Ltd [2016] SAET 4.
The Tribunal may, under s 18(5a), specify in its order:
If the Tribunal orders an employer to provide suitable duties, it must also order the employer to pay an appropriate amount to reflect the wages the worker would have received had they been provided suitable duties from the day they made their request [s 18(5e), (5f)]. The Tribunal must ensure that the worker is no worse off and no better off than they would have been had they been provided suitable employment at the outset. The worker may also be able to recover reasonable costs incurred in applying to the Tribunal [s 18(6), (8)].
Special provision is also made for labour hire providers to require host employers to cooperate where labour hire providers are obliged to provide suitable work for injured workers [s 18(16a)].
There is an emphasis in the Return to Work Act 2014 (SA) on helping an injured worker return to work wherever possible, although the legislation no longer uses the word 'rehabilitation'.
The Act provides for a range of rehabilitation services, formalised in a recovery/return to work plan to help injured workers recover as best as possible and return to the workforce and the community [ss 23, 25].
Where an injured worker is likely to be incapacitated for work for more than 4 weeks, the compensating authority must prepare a binding recovery/return to work plan in consultation with the worker and, where reasonably practicable, the worker's treating doctor [s 25]. A plan may also be imposed in other circumstances.
A recovery/return to work plan may impose obligations on a worker, their employer and, where relevant, a host employer [s 25(4)].
If a worker fails to participate or cooperate in the establishment of a plan, or fails to comply with an obligation under a plan, the worker's income maintenance payments may be discontinued.
Recovery/return to work services may include fees for training and educational courses, and the provision of other equipment or services to help a worker cope with the injury, even where those services are not focussed on returning the worker to work. This can include home help, garden maintenance, and even the costs of a special bed or chair. A worker may request specific equipment, services or training as part of a rehabilitation plan or program [s 24].
A worker may dispute decisions about the nature and scope of recovery/return to work plans by commencing proceedings in the Tribunal, as explained below [s 97].
For a seriously injured worker, see also s 56A: Election to receive lump sum payment.
In limited circumstances, sections 53 and 54 of the Return to Work Act 2014 (SA) allow an injured worker to reach an agreement with the compensating authority for payment to the worker of a lump sum to finalise all ongoing and future entitlements to income maintenance and/or medical expenses. This is known as redemption.
The effect of redemption is to finalise and extinguish for all time the compensating authority's liabilities for income maintenance and/or medical expenses.
Redemption can be reached only by agreement. The compensating authority cannot force the worker to agree to redemption and the worker cannot force the compensating authority to pay any particular amount by way of redemption. Whether there is a redemption payment, and the amount of any such payment, are matters for agreement and cannot be fixed or reviewed by a court or tribunal.
A redemption of a compensating authority’s liability for income maintenance may affect the worker’s present entitlement, or a future entitlement, to income maintenance for any further work injury. Legal advice should be sought if any deduction is applied.
A redemption payment may be, at least in part, subject to taxation. Appropriate financial and legal advice should be sought in that regard.
A redemption payment may result in a Centrelink preclusion period during which the worker will not be entitled to receive Centrelink payments. The length of that period will depend on the total amounts received by the worker by way of lump sum compensation and redemption. Centrelink may also be entitled to recover, from the redemption monies, benefits that it has made in the past.
Services Australia - Child Support will be informed of the settlement and may be entitled to recover any monies owing from the redemption.
If the worker lives in Housing SA accommodation, a redemption payment may affect worker’s liability for rent.
Before a redemption agreement can be completed, the worker must obtain professional advice about the effects of the redemption, financial advice regarding the investment or use of the redemption monies, and a certificate from a doctor that the extent of the worker’s incapacity for work can be determined with a reasonable degree of confidence [s 53(2)]. The compensating authority is liable to pay prescribed fees for this professional and financial advice [s 53(4)].
Professional advice about redemption is usually provided by a lawyer or union representative familiar with workers compensation claims. Such advice should include:
When considering whether or not to agree to redemption, legal advice should always be sought.
Where a worker dies in the course of employment, or because of a compensable injury, the worker's domestic partner or children may be entitled to compensation including:
Current compensation amounts, which are indexed annually, are available in a Schedule of Sums which can be downloaded from the Return to Work SA website.
This is a complicated area and legal advice should always be sought.
The worker's treating doctor should provide information regarding the condition and treatment of the worker only if authorised by the worker to do so. It would normally be in the interests of an injured worker to give an authorisation as this usually speeds up processing of the claim. If the worker incurs a fee for obtaining their own report from the treating doctor or a specialist, the compensating authority should pay this cost.
All clinical records of a treating health practitioner may be accessed by a compensating authority if there is a legal dispute over compensation rights in the South Australian Employment Tribunal.
A worker has a right to copies of documents relevant to their claim on written request to the compensating authority. Exclusions apply to documents related to investigations of dishonesty and communications between a compensating authority and its lawyers [Return to Work Act 2014 (SA) s 180].
The compensating authority can ask an injured worker to submit to a medical examination [s 181]. The purpose of this examination is assessment of the condition, but not treatment of it.
If the worker unreasonably refuses, income maintenance payments can be suspended until the examination takes place. The compensating authority must pay the examination cost and any costs incurred by the worker in attending.
The worker is entitled to receive from the compensating authority a copy of the medical report prepared by the medical practitioner [s 182].
Decisions made by the compensating authority in relation to a workers compensation claim, including decisions about recovery/return to work services, weekly payments, lump sum payments and medical expenses, can be challenged by a worker or employer by filing a Notice of Dispute with the South Australian Employment Tribunal [Return to Work Act 2014 (SA) ss 97 – 99] . No fee is payable for lodging a Dispute.
The dispute should be commenced within one month of receiving notice of the disputed decision. The Tribunal may allow an extension of time if there is good reason to do so and another party will not be disadvantaged by the delay [s 100].
The Tribunal will list the matter for a compulsory conciliation conference [s 104]. At the same time, the Tribunal will ask the compensating authority to reconsider the disputed decision [s 102]. If the compensating authority varies the decision and the worker is not satisfied with the variation, the worker may then lodge a Notice of Dissatisfaction.
At the compulsory conciliation conference, a Conciliation Officer will help the parties resolve or narrow the dispute by agreement.
If agreement cannot be reached, the dispute will be referred for judicial determination (trial) before a presidential member of the Tribunal. Usually at judicial determination, lay (non-expert) evidence is given by written statements and expert evidence is given in the form of written reports. Witnesses will be cross-examined (questioned) and the parties will make their arguments.
At the conclusion of the hearing, the Tribunal will decide whether the compensating authority’s decision should be confirmed, varied or set aside.
The worker is entitled to be legally represented at conciliation and at judicial hearings [South Australian Employment Tribunal Act 2014 (SA) s 51, Return to Work Act 2014 (SA) s 105].
Generally, a worker who seeks advice or assistance from a lawyer in relation to a workers compensation claim is not entitled to recover their legal costs from the compensating authority.
A worker is entitled to recover legal costs from the compensating authority for work that relates to a dispute in the South Australian Employment Tribunal, whether or not the dispute is ultimately successful.
The maximum amount that a worker may recover for legal costs up to the conclusion of the conciliation stage of a dispute is prescribed by regulation 44 of the Return to Work Regulations 2015 (SA).
For work performed after the dispute is referred for judicial determination, the worker may recover legal costs to a maximum of 85% of the Supreme Court Scale.
Some lawyers who specialise in workers compensation claims will represent injured workers for this fee and without charging any costs on top.
Rule 98 of the South Australian Employment Tribunal Rules 2024 provides that a representative must not charge at a rate greater than the Supreme Court Scale (including ‘no win no fee’ agreements) unless there are exceptional circumstances.
A worker may not be able to recover legal costs if the worker acted unreasonably, frivolously or vexatiously in relation to the dispute [Return to Work Act 2014 (SA) s 106(3)]. If the proceedings were frivolous or vexatious the worker may be ordered to pay some or all of the compensating authority, or employer’s, legal costs.
Compensating authorities actively investigate any suspected fraudulent claim. An investigator who wants to question a claimant should seek legal advice first.
A worker who is not receiving income or payments, whether because payments of compensation have not yet started, or because payments have stopped due to a dispute between the worker and Return to Work SA, or some other reason, may apply for sickness benefit from Centrelink. If the worker later recovers weekly payments of compensation, Centrelink will recover any payments that it has made (see Payments – Centrelink and Veterans).
A worker might also be able to claim income protection insurance payments. Often workers have income protection insurance through their superannuation funds.
The rules about how the Return to Work Act 2014 (SA) is to apply to workers who suffered injuries under the former Workers Rehabilitation and Compensation Act 1986 (SA) are complex [Return to Work Act 2014 (SA) Schedule 9].
Generally, if a worker is entitled to weekly payments at 1 July 2015 the payments will continue for a maximum of two years, unless the worker is assessed as having at least a 30% Whole Person Impairment. Assessments can be requested by workers. If found to have a 30% impairment or more their weekly payments can generally continue until retirement age, less any other earnings.
Any permanent injuries suffered before 1 July 2015 are assessed under the new assessment guidelines. If one or more injury has been assessed before 1 July 2015, any other permanent injuries arising from the same trauma need to be assessed and determined before 1 July 2016.
Any entitlements to medical expenses at 1 July 2015 will generally cease on 1 July 2016 [Return to Work Act 2014 (SA) Schedule 9, clause 35].
A common law claim for damages was based on an employer's duty to take reasonable care for the safety of employees in all the circumstances of their employment, and to comply with Work Health and Safety laws. In the past an employee injured at work was sometimes able to recover damages from her or his employer. The damages were usually larger than the amount paid as Workers Compensation, but they could only be recovered when there was proof of negligence, i.e. fault on the part of the employer, or breach of safety laws. Common law claims for damages against a worker’s employer were effectively abolished in 1994.
From 1 July 2015 common law claims for damages against a direct employer have been reintroduced in limited circumstances. Only a ‘seriously injured‘ worker may apply for common law [Return to Work Act 2015 (SA) s 72]. If damages are recovered no further compensation is generally payable and compensation already paid is repayable [s 75]. As the interaction of common law claims with workers compensation rights is complex, detailed legal advice should be sought [Return to Work Act 2014 (SA) Part 5].
If the worker's injury is caused by the negligence of someone other than the employer such as a contractor, treatment provider or employees of a different employer, there is no limit to the damages that may be claimed unless it is caused by a motor vehicle accident, see Motor vehicle accidents. The situation in this area is likely to be very complex and detailed legal advice should be sought.
In the past, where an employer breached an Act or regulation that set safety levels in the operation of the business, an employee injured as a result of that breach may have had a claim for damages. The particular Act or regulation must have as its aim the protection and safety of employees from injuries at work. These claims have now been abolished with the removal of common law actions.
The main Act in South Australia imposing safety requirements on employers is the Work Health and Safety Act 2012 (SA). In the event of breaching the Act an employer will be fined, see Safety legislation.
However, only the rights of employees have been abolished. Contractors and other people who are injured may be able to make a claim for a breach of an Act. An injured plaintiff need only prove non-compliance by the employer with the Act, or any regulations made under that Act, and that the injury has resulted from the breach. In these circumstances it is not necessary to prove reasonableness or foreseeability as these factors are irrelevant unless they form part of the particular statutory duty.
Employees of the Commonwealth Government who are injured arising out of or in the course of their work are covered by the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Comcare has been established to administer the legislation. As with the South Australian legislation the emphasis is on maintaining the injured employee's wages while rehabilitating her or him allowing a return to work.
For further information see Comcare compensation scheme and the Comcare website.
The Comcare scheme covers employees (whether full time, part time, temporary, casual, or probationary ) of:
[See: http://www.comcare.gov.au/; Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5].
A work-related injury is defined in s 6 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and has the same broad definition as the State legislation. If a work-related injury or illness has kept an employee away from work for 28 days or more, the employee will be referred to a case manager to assist in the rehabilitation process. There is also a specific compensation scheme for Asbestos related claims.
A case manager from the employer will consult with the employee, and also the employee's employer, manager, doctor, union representative and anyone else appropriate in order to help the employee return to work as soon as possible [Safety, Rehabilitation and Compensation Act 1988 (Cth) s 36]. The employee will return to their former position or, if that is not possible, to a modified or different job. An approved rehabilitation provider may also be contacted to assist [see Safety, Rehabilitation and Compensation Act 1988 (Cth) Part 3 Division 2].
Formal Review
An employee who disagrees with a case manager's decision may seek an appeal by asking Comcare for a Formal Review [Safety, Rehabilitation and Compensation Act 1988 (Cth) s 38]. If still dissatisfied, an appeal can be lodged at the Administrative Review Tribunal (ART) (formerly the Administrative Appeals Tribunal or AAT).
Review by the Administrative Review Tribunal
A person seeking a review by the ART must do so within 60 days after receiving notice of the Comcare decision. An application to extend the time to lodge an application can be made to the Tribunal, however it is not a guarantee that an extension of time will be granted. There is no application fee to apply for a review of a Comcare decision. An application for review can be made online, by email, post or fax. There is no requirement to be legally represented at the ART, however the other party may be represented. Another professional person may represent a party, or even a family member or friend. If a party does appoint a representative, the ART must be provided with their details. For more information on appearing in the ART, please visit the ART workers compensation webpage.
If the matter proceeds to a hearing, the Tribunal may affirm, vary, or set aside the decision, or send back the decision to a Comcare review officer to make a new decision.
For information on the jurisdiction of the ART, see Commonwealth Administrative Appeals.
Legal Costs
The power of the ART to award costs in an ART Comcare matter is set out in section 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). In certain circumstances, the ART may order that a party to a proceeding pay the costs incurred by another party. The legislation states that if the ART sets aside a reviewable decision, and remits the case back to the decision-maker for redetermination, the ART must order the decision-maker to pay the costs a worker has incurred (although certain exceptions apply, for example where certain processes have not been followed by a worker).
Appealing from a decision of the ART
The Administrative Review Tribunal Act 2024 (Cth) provides that a party to a proceeding before the ART may appeal to the Federal Court of Australia on a question of law from any decision of the ART in that proceeding.
Applicants considering a Federal Court appeal of an ART decision should seek specialised legal advice, as significant legal costs may apply. A party who loses an appeal from a decision of the ART will usually be ordered to pay the other party's legal costs.
Visit the Federal Court of Australia's website for further information.
While an employee is off work Comcare will make weekly payments of the employee's normal wage for the first 45 weeks. If the employee has still not returned to work after this time they will only receive 75% of her or his normal wage. This can be increased to up to 90% if the worker has dependants. Comcare will pay all medical and hospital costs and the cost of a rehabilitation program.
Where an employee is permanently impaired a claim can be made for up to $204,880.70 and up to a further $38,415.15 for pain and suffering (as at 1 July 2022). Comcare will pay for the cost of artificial limbs and may grant financial assistance for essential modifications to a home or car. Assistance may also be given for the injured employee to receive attendant care and/or obtain household help.
In the case of death, the employee's dependents may claim up to $596,838.09 as well as funeral expenses and a weekly allowance for each dependent child (as at 1 July 2022).
Other compensation figures are also indexed annually [see generally Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 13-29]. As with the South Australian legislation, compensation is also paid for permanent disabilities (impairments) although a threshold of 10% must be experienced before any compensation is paid.
Please visit the Australian Government ComCare website for further information on the scheme.
Asbestos related claims
There is also a specific compensation scheme for Asbestos related claims.
The Work Health and Safety Act 2012 (SA) provides for the safety, health and welfare of persons employed or engaged in industry in South Australia.
The Act, together with the Work Health and Safety Regulations 2012 (SA), set up health and safety duties to provide protections from hazards and risks in the workplace. The duties fall not only on the persons running a business and their officers, but also on individual workers [Work Health and Safety Act 2012 (SA) ss 27-29].
It is a criminal offence to breach work health and safety duties. Maximum penalties generally range from $500,000 to $3 million for corporations, and from $50,000 to $600,000 for individuals [Work Health and Safety Act 2012 (SA) ss 30-34]. Penalties can also include imprisonment of up to 5 years for individuals if the offence is considered reckless conduct [s 31].
From 1 July 2024, new section 30A of the Work Health and Safety Act 2012 (SA) criminalises industrial manslaughter. A person commits this offence if, by their reckless or grossly negligent conduct, they fail to meet their health and safety duty and cause the death of a worker. The maximum penalty for an individual is 20 years imprisonment and for a corporation a fine of $18 million. Visit the SafeWork SA website for more information.
The Work Health and Safety Act is enforced by the regulator, SafeWork SA [Work Health and Safety Act 2012 (SA) Part 8]. SafeWork SA has powers to enter workplaces, obtain search warrants, and various powers related to the seizure of documents and other evidence [ss 160-181]. Safework SA Inspectors can issue infringement, improvement, non-disturbance and prohibition orders [ss 191 – 210]. SafeWork SA can also accept enforceable undertakings, for example that a breach of workplace safety will be rectified [ss 216-222]. Decisions of inspectors can be reviewed [see Part 12].
Codes of Practice provide guidance as to what measures should be taken by employers to prevent workplace injury.
The Act also establishes a system of worker representation through Health and Safety Representatives and Committees [Part 5].
Under the Act, union officials can gain a right of entry to a workplace when there is a suspected breach of work health and safety laws [see generally Part 7 Work Health and Safety Act 2012 (SA)]. This is to consult with workers and check records. There are penalties for misuse of this right of entry.
The coronavirus (COVID-19) pandemic has created significant challenges to all parties with duties and obligations under existing work, health and safety (WHS) laws. For practical guidance on identifying and managing COVID-19 related risks in the South Australian workplace, please see the Safe Work SA website. See also the Fair Work Ombudsman’s regularly updated resource on ‘Health and Safety in the Workplace During Coronavirus’.
For further information, copies of the Codes of Practice, and fact sheets, visit SafeWork SA’s website.
For information about workplace health and safety and worker's compensation legislation across Australia visit SafeWork Australia’s website.
Bullying
Workplace bullying (repeated unreasonable behaviour towards a worker which creates a risk to the worker's health and safety) is covered by the Work Health and Safety Act 2012 (SA). Safework SA can investigate complaints of bullying.
The Fair Work Commission can also deal with workplace bullying. Visit www.fwc.gov.au for more information about this process.
See also: Workplace bullying
We embrace diversity and welcome all people, irrespective of culture, faith, sexual orientation and gender identity.
.png)
.jpg)
.jpg)
.jpg)
Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
.png)
.png)
