Part 1: Weekly payments
If you have been injured at work you are likely to have various entitlements through the workers compensation system. The legislation which governs those entitlements for workers employed by South Australian employers is the Worker’s Compensation and Rehabilitation Act 1986 (SA) (”the Act”). This article is the first in a series regarding workers’ entitlements under the Act. The focus of this article is income maintenance, otherwise known as weekly payments.
If you are injured at work and unable to return to your pre injury employment hours you may be entitled to compensation for loss of your employment related income. These weekly payments are referred to as income maintenance.
The amount you will receive in weekly payments is based on your average (or notional) weekly earnings with your employer in the 12 months leading to your injury. If you income varied in this period, this may mean that you will receive less in income maintenance than you were receiving immediately before the accident. This is because your weekly payments are based on the average of your earnings in that 12 month period.
Income maintenance payments are made in 3 stages called entitlement periods.
- For the first 13 weeks that you are unable to work you are entitled be compensated for 100% of your average weekly earnings.
- For weeks 13 to 26 there is a reduction in your weekly payments to 90% of your average weekly earnings.
- After 26 weeks there is a further reduction to 80% of your average weekly earnings.
If you return to work but not earning more than your average weekly earnings, your entitlement to weekly payments is based on the difference between what you are earning and your average weekly earnings. This is called a top-up payment. For example, in the second entitlement period you would be entitled to receive a top up weekly payment of 90% of the difference between what you are earning and your average weekly earnings.
If you are still receiving weekly payments at 130 weeks your entitlement to income maintenance will be based on assessment of your work capacity. In order for weekly payments to continue, you must make an application to WorkCover and show that:
- You have no current work capacity and that this is likely to continue indefinitely; or
- You are in employment and because of your injury you are, and are likely to continue indefinitely to be, incapable of undertaking further or additional employment or work which would increase your average weekly earnings.
A range of factors may be taken into account when assessing whether employment is suitable, including the nature of your incapacity and previous employment, your age, education, skills and work experience, your place of residence and your health and ability to perform certain tasks.
If you do not meet at least one of these criteria WorkCover SA is entitled to discontinue your weekly payments after giving you 13 weeks written notice.
Your income maintenance may also be discontinued at any time for the following reasons:
- You have breached “mutuality”. This can include failing to attend a medical or rehabilitation appointment, refusing to perform suitable duties for your employer or your employment is terminated on account of serious or willful misconduct.
- You receive earnings equal to or above your average weekly earnings.
- You reach the age of 65 years; and/or
- You are absent from South Australia for more than 2 months in a year without consent from your case manager.
If you are unhappy with a decision regarding your weekly payments you may have an entitlement to appeal that decision. A decision by WorkCover regarding your entitlements under the Act is known as a determination. A determination to vary, suspend or discontinue income maintenance can be disputed in the Tribunal. If you wish to dispute a determination, you can do so by lodging a Notice of Dispute in the Workers Compensation Tribunal one month from the date you received the determination.
If you would like advice in relation to income maintenance entitlements or any other workers compensation matter, please contact the office on 1800 002 066.