SA

Workcover resources – South Australia (SA)

SA  SafeWork – This is SA’s provider of South Australia’s workers compensation scheme promoting workplace health and safety.

www.safework.sa.gov.au

Workers Rehabilitation and Compensation Act 1986

Who is entitled to claim Workers Compensation in the state of South Australia?

An individual may be entitled to claim South Australian Workers Compensation if they are identified as a worker and have sustained a workplace injury in the state of South Australia.
WorkCover South Australia is the management for Workers Compensation in South Australia.

What are my limitation periods?

In South Australia you must report your injury to your employer as soon as possible and lodge your claim within 3 years from your date of injury to avoid your claim becoming statue barred.

What entitlements may I receive in compensation in South Australia?

Receiving compensation in the state of South Australia does not differ from any other state in Australia. Some entitlements that you may receive in compensation are:-

• Your medical and rehabilitation expenses.
• Your financial expenses while you no longer work at your original workplace.
• Lump sum payment if your injury has a percentage of permanent impairment.

What may my entitlements be to a Common Law Claim?

Seeking legal assistance is the best way to go as the WorkCoverSA and other insurance companies just do not take these losses into consideration, therefore will minimise your compensation.”

Resources and links

Workcover corporation South Australia

Claim estimation manual SA

Download the claim estimation manual here (pdf) : http://www.workcover.com/documents.ashx?Id=5124&filetype=pdf

Employment and injured workers in SA – Ombudsman Report

The following information was kindly emailed to us by “R” on 15 July 2012

Presentation to:  REG Incorporated SA (Registered Employers Group)

Annual General Meeting

Date:   17 August 2011

By:   Wayne Lines, WorkCover Ombudsman

Section 58B and the WorkCover Ombudsman’s Jurisdiction

The Scope of Section 58B

Section 58B of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) has been in operation since 1 January 1989.  As all good employers know, this section requires an employer to keep an injured worker in employment if they are affected by their work injury but able to perform some work.  A failure to comply with this obligation can result in WorkCoverSA imposing substantial supplementary levies.

In 2008, the Act was amended to also increase the maximum fine for breaches of section 58B from $2,000 (under the catch-all offence of section 122) to $25,000.   Subsection 58B(3) was inserted at the same time.  This requires an employer to pay an appropriate wage or salary to a worker who is performing alternative duties as a result of their work injury.

What many employers do not know is the full scope of section 58B.  There are very few cases where Courts have had to interpret it, so it is understandable that awareness of it is quite limited.  However, in my view, the language of the section allows for the section to be given considerable scope including the following:

1. 1. The obligation to provide employment requires there to be a contract of employment in place.  Performing duties under a RRTW Plan for an extended period without pay (other than income maintenance) does not meet this obligation.
2. The obligation may require the creation of a position if the worker cannot return to their pre-injury employment and no vacancy exists for alternative, suitable employment.  Whether this is reasonably practicable is a question of fact and degree.
3. The obligation applies whether or not there is a subsisting employment relationship with the injured worker.  Suitable employment must be provided even if the worker is out of contract.
4. An employee with a compensable disability has priority over other job applicants who may be more qualified for the vacancy if that vacancy is for a position that would constitute suitable employment for that injured employee.
5. Where the injured worker’s incapacity commences while performing higher duties, the obligation requires that they be returned as near as reasonably possible to those higher duties.
6. If an injured worker has the capacity and the qualifications to undertake work at a level higher than their substantive position and that is the only suitable employment available, the employer must offer it to them.
7. The obligation continues for as long as it is reasonably practicable to provide the employment and the worker’s partial incapacity continues.

Even if the employer terminated the worker’s employment after a long period of total incapacity, the obligation remains dormant until the worker regains some capacity.  The obligation ceases once the worker fully recovers their capacity for work or their incapacity is no longer a result of the compensable disability.

Subsection (2) provides some exceptions to the obligation.  These are:

1. 1. Providing the employment is not reasonably practicable.
2. 2. The worker left the employment before the incapacity commenced.
3. 3. The worker terminated the employment after the incapacity commenced.
4. 4. The employer has less than 10 employees and the worker’s incapacity has continued for more than a year.

EML’s NET Procedure

Employers Mutual has a procedure for “detaching” a worker from their preinjury employer so that the rehabilitation goal may be changed to returning the worker to suitable employment with another employer.  They call this the

“New Employer Transition” or “NET” procedure.  WorkCoverSA handed this responsibility to EML in about 2008, just before my appointment.  Obviously, if the detachment is carried out with EML’s imprimatur, then an employer is less likely to be challenged about complying with the section 58B obligation.  I say, “less likely” because EML’s decision to detach a worker does not necessarily end the obligation.

The NET procedure was one of the more regular subjects of complaint that were brought to my office in the first 12 months of operation.  I found that the procedure had a number of deficiencies.  One problem was the lack of explanation given to both workers and employers about the decision to detach or not detach.  Another was the lack of opportunity being given to either side to contribute to the decision.  I found that decisions were often not evidence based.  A decision could be made on hearsay.  Workers and employers were not provided with any useful information as to the implications of the decision.  An avenue for reconsideration was not spelt out.

I also found that there were inadequacies in the way that alleged breaches of section 58B were investigated by WorkCover’s Return to Work Inspectorate.

Their procedures lacked detail about what factors needed to be taken into account for deciding whether a breach had occurred.  There was no requirement that they provide the parties with a report on the results of their investigation.

In the first two years of operation, I made a series of recommendations to both EML and WorkCover to improve their policies and procedures in this area.

After a couple of attempts at revising their procedures, I think progress has been made to address these concerns.  At least, I have noticed that complaints about the process have not featured so prominently of late.

One of the improvements is that once a decision to detach has been made, both the worker and employer should receive a letter from EML confirming it and setting out some of the implications.  For an employer one of the implications is that the pre-injury employer is able to terminate the worker’s employment on the basis that he or she is not fit to return to any form of employment with them.  However, the letter to the employer should also advise that should the worker’s capacity for work change or the employer’s circumstances change, EML may need to revisit the detachment decision.

This is because the section 58B obligation does not die once a worker’s employment is terminated by the employer even if this is with the approval of EML and WorkCoverSA.  The obligation goes into hibernation and can reemerge if the right conditions arise.

For example, if a detached worker gains an increased capacity for work such that employment with the pre-injury employer which was once unsuitable becomes suitable and the worker has not been able to find work with another employer, there is nothing to prevent the rehabilitation goal being changed back to the worker returning to work with the pre-injury employer and the employer would have to co-operate with that process.  The fact that the employer terminated the worker’s employment following the detachment decision is not an exemption to section 58B(1).

WorkCover Ombudsman’s Jurisdiction

Subsection 99D(1)(c) of the Act bestows on my Office the function of receiving and investigating complaints about failures to comply with section 58B or 58C and to give directions to the Corporation or any relevant employer in connection with the operation or requirements of either section, and to investigate other matters relating to providing for the effective rehabilitation of disabled workers and their return to work on a successful basis.

This allows me to investigate complaints about breaches of section 58B as well as the processes relating to rehabilitation and return to work.  I have relied upon this function to investigate EML’s Net procedure and WorkCoverSA’s Return to Work Inspectorate’s policies and procedures for investigating alleged breaches of section 58B.

I also have a general function of reviewing issues arising out of the operation of the Act and making recommendations for improvement.  I am uncertain about the significance of giving directions as provided for by subsection 99D(1)(c) as distinct from making recommendations.  In either case, whether it is a direction or a recommendation, they are not enforceable and I rely upon the willingness of compensating authorities and employers to implement them.

However, subsection 99D(3) of the Act prohibits me from investigating an act where the relevant matter is capable of being reviewed under certain parts of the Act including Part 5 and section 72 which governs the review of levies.  In addition I cannot investigate a matter that is the subject of legal proceedings.

This does add a complicating factor if I am investigating a complaint by an employer about the way WorkCoverSA’s Return to Work Inspectorate have conducted an investigation of a breach of section 58B.  If their investigation has lead to a supplementary levy being imposed, I may not have jurisdiction to investigate because the subject of the complaint may be relevant to a matter that is capable of being reviewed by the Levy Review Panel under section 72 of the Act.  However, by treading carefully and clearly defining the subject of the complaint so that it does not overlap with a reviewable matter, it has been possible in some instances for my Office to conduct an investigation in this area even where a supplementary levy has been proposed.

Due to this complication, it is advisable for anyone who wants to complain to me about a section 58B or C investigation by WorkCover, to discuss it with me first.  I may be able to help define the subject of the complaint so that it comes within my jurisdiction.  If it is not possible to do that, I will tell you so that you don’t waste your time writing up a complaint.

Appendix A: Sections 58B and 58C of the Workers Rehabilitation and Compensation Act 1986 58B—Employer’s duty to provide work or pay wages

(1) If a worker who has been incapacitated for work in consequence of a compensable disability is able to return to work (whether on a full-time or parttime basis and whether or not to his or her previous employment), the employer from whose employment the disability arose must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity).

Maximum penalty: $25 000.

(2) Subsection (1) does not apply if—

(a) it is not reasonably practicable to provide employment in accordance  with that subsection (and the onus of establishing that lies in any legal proceedings on the employer); or

(b) the worker left the employment of that employer before the commencement of the incapacity for work; or

(c) the worker terminated the employment after the commencement of the incapacity for work; or

(e) the employer currently employs less than 10 employees, and the period that has elapsed since the worker became incapacitated for work is more than 1 year.

(3) If a worker who has been incapacitated for work in consequence of a compensable disability undertakes alternative or modified duties under employment or an arrangement that falls outside the worker’s contract of service for the employment from which the disability arose, the employer must pay an appropriate wage or salary in respect of those duties unless otherwise determined by the Corporation.

58C—Notice of termination of employment to be given in certain cases

(1) If a worker has suffered a compensable disability, the employer from whose employment the disability arose must not terminate the worker’s employment without first giving the Corporation and the worker at least 28 days notice of the proposed termination.

Maximum penalty: $15 000.

(2) However, notice of termination is not required under this section if—

(a) the employment is properly terminated on the ground of serious and wilful misconduct; or

(b) the worker is neither receiving compensation, nor participating in a rehabilitation program, for the disability; or

(c) the worker’s rights to compensation for the disability have been exhausted or the time for making a claim for compensation has expired.

[In legal proceedings, the burden of establishing that an employer terminated a worker's employment on the ground of serious and wilful misconduct lies on the employer.]

Appendix B: Section 99D of the Workers Rehabilitation and  Compensation Act 1986 99D—Functions

(1) The WorkCover Ombudsman has the following functions:

(a) to identify and review issues arising out of the operation or administration of this Act, and to make recommendations for improving the operation or administration of this Act, especially so as to improve processes that affect workers who have suffered a compensable disability or employers;

(b) to receive and investigate complaints about administrative acts under this Act, and to seek to resolve those complaints expeditiously, including by making recommendations to relevant parties;

(c) without limiting paragraphs (a) and (b)—

(i) to receive and investigate complaints about failures to comply with section 58B or 58C and to give directions to the Corporation or any relevant employer in connection with the operation or requirements of either section;

(ii) to investigate other matters relating to providing for the effective rehabilitation of disabled workers and their return to work on a successful basis;

(d) to encourage and assist the Corporation and employers to establish their own complaint-handling processes and procedures with a view to improving the effectiveness of this Act;

(e) to initiate or support other activities or projects relating to the workers rehabilitation and compensation scheme established by this Act;

(f) to provide other assistance or advice to support the fair and effective operation or administration of this Act.

(2) The WorkCover Ombudsman may act under subsection (1) on his or her own initiative, at the request of the Minister, or on the receipt of a complaint by an interested person.

(3) However, the WorkCover Ombudsman—

(a) may not investigate an act where the relevant matter—

(i) is, or is capable of being, the subject of proceedings under Part 5, 6, 6A, 6B or 6C; or

(ii) is the subject of any legal proceedings; and

(b) may not investigate an act in the nature of an industrial dispute under the Fair Work Act 1994.

(4) The WorkCover Ombudsman must establish a scheme for receiving and dealing with complaints for the purposes of subsection (1).

(5) The WorkCover Ombudsman may refuse to entertain a complaint, or, having commenced to consider a matter raised in a complaint, may refuse to continue if of the opinion—

(a) that the matter raised in the complaint is trivial; or 7

(b) that the complaint is frivolous or vexatious or is not made in good faith;

or

(c) that the complainant or the person on whose behalf the complaint was made has not a sufficient personal interest in the matter raised in the complaint; or

(d) that the complainant has failed, without good reason, to take reasonable steps to resolve the matter through another established complaint-handling process; or

(e) that having regard to all the circumstances of the case, the investigation or the continuance of the investigation of the matter raised in the complaint is unnecessary or unjustifiable; or

(f) that the matter raised in the complaint should be dealt with under another Act or by another person or body; or

(g) that there is some other reasonable cause that justifies the discontinuance of proceedings under this Part.

(6) The WorkCover Ombudsman may, at any time, decide to attempt to deal with a complaint by conciliation (and, in doing so, may act personally or through some other person).

(7) In this section— act includes—

(a) an omission;

(b) a decision, proposal or recommendation, and the circumstances surrounding an act

 Useful documents and links

Guidelines for a functional capacity assessment

WorkCover Rehabilitation and return to work co-ordinator training and operational guidelines

Return to Work and Rehab