Workers’ Compensation — New ‘return to work’ framework becomes law 

The time is almost upon us. As we previously informed our readership, the Return to Work Act 2014 (SA) (RWA) commences operation on 1 July 2015, replacing the current Workers Rehabilitation and Compensation Act 1986 (SA).

The commencement of the RWA brings with it sweeping changes to the South Australian workers’ compensation framework. Employers should be aware of the following changes:

Employer’s duty to provide work

An injured worker, who alleges failure by an employer to provide suitable work, can apply to the new South Australian Employment Tribunal (SAET) for an order that the employer provide specified employment to the worker.

Failure to adhere to such an order can carry significant financial consequences for employers, such as an order that the employer pay the worker’s legal costs of the hearing.

These costs will not be reimbursed to the employer by the Return to Work Corporation.

Tests for compensability

The RWA changes the requirements for injury compensability. In the case of a physical injury, the injury must arise out of or in the course of employment, and the employment must be a significant contributing cause of the injury. It is no longer enough for the injury to merely have occurred while the person is at work.

In the case of a psychiatric injury, an injured worker can be eligible for workers compensation if the injury arises out of or in the course of employment, and the employment was the significant contributing cause of the injury.

The requirement that employment was the significant contributing cause of a psychiatric injury is ambiguous, particularly where there are multiple possible sources of contributing causes. We will be paying close attention to how this test in interpreted and applied by the SAET.

Seriously injured workers

There is now a distinction between ‘seriously injured’ workers (being workers with permanent impairment, and a degree of whole person impairment, of or greater than 30%) and those who are not seriously injured.

‘Seriously injured’ workers are treated differently to ‘non-seriously injured’ workers in relation to their entitlement to weekly compensation payments, medical expenses, return to work obligations and maximum lump sum for economic loss. For example, ‘seriously injured’ workers are entitled to weekly compensation payments until their retirement, whereas ‘non-seriously injured’ workers’ compensation payments will cease after 104 weeks.

Further, a seriously injured worker may pursue common law damages through law courts, however there are some limitations on this course of action. For example, a ‘seriously injured’ worker with a right of action against an employer cannot claim both redemption of a liability to make weekly payments and damages for future economic loss.

Powers of the South Australian Employment Tribunal

The SAET is the successor to the Workers Compensation Tribunal. Established to provide efficient and cost-effective processes for all parties involved, the SAET can exercise a number of powers in conducting its proceedings, including:

  • Entering and inspecting property;
  • Issuing a summons requiring a person to appear before the SAET at a specified time and place to give evidence or to produce evidentiary material;
  • Referring questions before it for investigation and report by an expert; and
  • Referring a matter to mediation before a mediator specified by the SAET.

For more specific information on any of the material contained in this article please contact Sathish Dasan on 08 8210 1253 or sdasan@normans.com.au or John Ward on 08 8210 1219 or jward@normans.com.au.