What 1 July 2017 will mean for injured workers under the new Return to Work SA Scheme

For many injured workers, the nature of their claims will change drastically from 1 July 2017.

Under the new Return to Work Act 2014 (“RTW Act") injured workers who were on the scheme at 1 July 2015 will lose their entitlement to ongoing income maintenance payments on 1 July 2017, unless they have met the threshold of a ‘Seriously Injured Worker’. To meet this threshold, the individual must have sustained a whole person impairment (“WPI”) of 30% or more.

The new RTW Act which took effect from 1 July 2015 introduced a requirement that any injured workers (excluding Seriously Injured Workers) who was injured on or after 1 July 2015will lose their income maintenance payments after two years. The ‘deadline’ for many of these workers is the fast approaching date of 1 July 2017.

This loss of entitlement is twofold in that, not only will workers lose their income maintenance from 1 July 2017, but 12 months on from that date, funding of their medical treatments will stop. Many injured workers will have to look at alternative options for income and treatment costs, and this is likely to include social welfare.

If an assessment for WPI has not already been performed, it is important for injured workers to contact the compensating authority as soon as possible to begin this process.

Given that this process can take time, often months, it is important for workers to commence this process as soon as the injuries have stabilised or are at a point where an assessment can take place. One of my recent applications took approximately 10 months to complete!

For those workers whose entitlements are due to expire come 1 July 2017, if the assessment or decision is to take place after this deadline, and the 30% threshold is met, the injured worker will be back paid for any weekly maintenance payments that were ceased by the compensating authority during that period.

Alternatively, if an assessment is unlikely to be made by the cut-off date due to the status of the worker’s injuries (ie the worker’s injuries are  not stable), an injured worker can make an application to Return to Work SA seeking an interim decision that the injured worker be deemed a Seriously Injured Worker.

These applications can take time and unfortunately, many workers will be left waiting well past the 1 July deadline for an outcome, with no certainty whether they will be deemed, even on an interim basis, a Seriously Injured Worker or not.

In addition,  interim applications can be complex and injured workers need to ensure that they have sufficient evidence to support their applications. Proper legal advice and medical consultation should first be obtained by the injured worker to determine what medical evidence would be required to support such an application.  A worker is entitled to claim for the costs of obtaining this advice under the RTW regulations and section 73(7) of the RTW Act. 

In the event that an injured worker does not meet the Seriously Injured Worker threshold, the focus should turn to future medical treatment.

As mentioned briefly above, under s33(20) of the RTW Act, medical expenses are now limited to a finite period of time, namely 12 months following the cessation of weekly payments.

There are however provisions for injured workers to make an application to the compensation authority for payment of future medical expenses pursuant to s33(17) of the RTW Act.  

The types of treatment covered can include surgery, associated medical, nursing or medical rehabilitation services (including the cost of hospitalisation), and therapeutic appliances required to maintain the injured worker’s capacity.   

Whilst the definition of these forms of treatment on paper seem quite straight forward, what is covered is quite broad and judging by recent cases from the South Australian Employment Tribunal (“SAET”), pre-approval for these treatments is not always clear cut.  

For example, in the recent case of Tinti v Return to Work SA [2016] SAET 79, when considering whether pre-approval for a shoulder rotator cuff repair and reverse shoulder replacement should be approved, Deputy President Calligeros stated that when considering any application under s33(21) for future treatment, an injured worker needs to prove on the balance of probabilities that the surgery sought is likely to be needed in the future and that the cost is likely to be reasonable.

Calligeros DP went on to say that whilst the primary issue to consider is the impact of the work injury on the worker’s present or future health capacity, the cost of the proposed procedure needs to also be reasonable and appropriate under s33(21)(b)(ii) and Regulation 23(2a)(b). The meaning of the word ‘appropriate’ in this instance was taken to mean what is appropriate with regard to the worker’s circumstances, or likely future circumstances, and the injury or condition for which the surgery is sought.

In this instance, the worker was only successful in her application for one of the two future surgeries sought, based on the supporting medical evidence.

Another recent case of Malthouse v Return to Work SA [2016] SAET 93 also provides injured workers with some guidance on these applications, establishing that section 33 must be read as a whole and section 33(20) cannot be read in isolation, with any application to be made before the nominated cessation date. Expenses must already have been incurred, pursuant to s33(17).The only exception to this is in relation to surgery, or associated medical, nursing and medical rehabilitation services associated with that surgery.

Injured workers also need to be aware that any application must be supported by strong evidence recommending the future treatment, and needs to clearly specify the nature of the treatment, as opposed to relying on a general description.

The case law clearly shows that there continues to be uncertainty around what the new RTW scheme means for injured workers post 1 July 2017, particularly in relation to future medical expenses.

Ultimately, the new scheme has removed some entitlements that previously protected workers for longer periods of time. This is likely to result in injured workers who are unable to return to their previous employment, but do not meet the high thresholds for ongoing support required under the new system, to look for alternative options in relation to financial, emotional and medical support. 

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