Under the Return to Work Act 2014 (SA) your entitlements will be significantly impacted based on the nature and severity of your work-related injuries.
Under the Return to Work Act a worker’s entitlements are split into two distinct streams as follows:
- Entitlements for workers who are not classified as “seriously injured” (i.e. assessed at a whole person impairment of less than 30%);
- Entitlements for workers who are classified as “seriously injured” and are assessed at a whole person impairment of 30% or more.
Whole Person Impairment
Whether or not you are a seriously injured worker is a question which will be determined by a qualified and accredited medical expert specific to your injuries. For instance, an occupational physician may be qualified to assess a physical injury like a spinal or shoulder injury while a psychiatrist would be the appropriate expert to assess a psychological injury such as Post Traumatic Stress Syndrome or Depression.
The way in which a qualified and accredited medical practitioner assesses your injury will depend on the nature of your injury and is specified by the Impairment Assessment Guidelines which are released by Return to Work SA (formerly WorkCover SA).
When you are assessed, the medical expert will determine the extent to which your injury is causing ongoing permanent impairment, meaning that the assessment is undertaken when your injuries are stable and you will experience the same restrictions in relation to your injuries on an ongoing basis. The expert will then assign a percentage, known as a whole person impairment which is a determination of the difference between your restrictions and your pre-accident capacity.
Whole person impairment is an expression of how an injury affects you as a whole. In practical terms, it means that a hearing loss injury which is assessed at 5% whole person impairment can be compared to a lumbar spine injury at 5% whole person impairment because they will have the same overall effect on your ability to function day to day. This also fixes the injuries for the purposes of compensation (so that equivalent injuries of different types can be compensated at the same level).
Physical Injuries – American Medical Association Guides to the evaluation of permanent impairment, 5th edition (“AMA5”)
In assessing physical injuries, an accredited assessor will use the AMA5 which is a journal published by the American Medical Association. Considerations taken into account by the expert in assessing your disability will include range of motion, pain, loss of function, and inability to perform specific activities (like self care tasks, domestic tasks and work related tasks).
As a guide, the following are examples of physical injuries which may attract a 30% whole person impairment:
- Severe injuries to both shoulder (such as bursitis or tendon damage) together with carpal tunnel syndrome of both hands;
- Multiple spinal fractures with significant symptoms of nerve pain;
- A complex brain injury.
These examples show that the threshold is extremely high and only under exceptional circumstances will a worker reach the 30% whole person impairment threshold, especially without multiple injuries being present. The reporting and identification of injuries at the earliest possible stage is therefore essential to ensuring that your entitlements are correctly identified to assess whether you will qualify as a “seriously injured” worker.
In addition, under the Return to Work Act a worker will only have one chance to be assessed in relation to their injuries arising from a single work related incident for lump sum compensation. This is crucial for workers who suffer multiple injuries or are vulnerable to an aggravation or sequel injury.
In practical terms, a worker may have suffered a tear of the tendon in the left shoulder which requires surgery. Often the worker will overuse their right shoulder to compensate for their lack of strength and motion in their left shoulder. As a result, they may develop a further injury to their left shoulder. If the assessment of their injury and subsequent determination of their entitlement occurs too early to capture the secondary, or sequel, injury then they may not be able to claim their full lump sum entitlements.
Ensuring that all injuries are the subject of assessment and determination by Return to Work SA is important for the purposes of determining a persons whole person impairment and this also has a significant impact on lump sum compensation under the Act.
Psychological Injuries – Guide To The Evaluation of Psychiatric Impairment for Clinicians (GEPIC)
Psychological injuries are treated as separate and distinct from physical injuries, and as such require a different system of assessment. GEPIC is the relevant assessment criteria for psychological illnesses under the Return to Work Act.
In order to be assessed under the GEPIC model and the legislation you will need to be seeking treatment from a psychologist and have a diagnosable psychiatric injury. The system of assessment is complex and provides the expert with discretion to base their assessment of your permanent impairment as a result of your ongoing psychological symptoms on a range of evidence (e.g. their consult with you and your medical records).
The assessing psychologist will take into account a broad range of factors when assessing you including the way that your condition alters your thinking, mood, judgment, perception behavior and intelligence.
So that your condition can be properly identified, treated and diagnosed you should consult your treatment providers to ensure you are obtaining the proper treatment.
When you are being assessed for permanent impairment it will usually be for the purposes of determining your entitlement to lump sum compensation. This assessment is often also used to determine whether you are a seriously injured worker. As such, it is important to note that a specific procedure applies when undergoing your assessment and that the worker is able to choose the expert who assesses them.
This is an important step because some practitioners may be better suited to assessing your injuries, whether they are physical, psychological or both (which is often the case). Identifying your injuries, choosing the right expert (or experts) and managing the process to make sure your assessments occur at the right time in your recovery is the most important step in determining your ongoing entitlements.
You should seek legal representation to help you through this process so that we can use our expertise and knowledge of the worker’s compensation system and experts available to ensure you get the best result possible.
If you have a serious injury but do not meet the threshold for a “seriously injured” worker you should contact us to determine whether you may be able to access benefits under your superannuation policy such as ongoing income protection payments or a lump sum Total and Permanent Disablement or Terminal Illness Benefit to ensure that you can manage your financial affairs and treatment expenses during your recovery.
If you have a claim for worker’s compensation and require specific advice regarding the nature of your entitlements under the Return to Work Act then you should contact Turner Freeman Lawyers (SA) on (08) 8213 1000 to obtain specialist legal advice specific to your work related injury.