If you ever have to ask yourself one of the following questions, then you should seek legal advice. The answers in this section are general and we recommend that you arrange a no-obligation first interview with us to discuss the specific circumstances of your case.

For Workers: Am I entitled to claim workers compensation?

To claim workers compensation under the Return to Work (South Australia) or the Comcare scheme, you must be a worker or employee covered by the scheme, and have suffered an injury which arises from employment. In some cases self employed contractors can also be eligible to claim workers compensation. You may be able to claim workers compensation even if you are working on a casual or part-time basis. Claims can be made for both physical and psychiatric injuries. There are time limits associated with lodging a claim for compensation, so we recommend that you obtain legal advice as soon as possible after an injury occurs.

For Workers: What can I claim?

The specific entitlements available under each workers compensation scheme differ, but generally speaking, they fall into three categories:

  • income maintenance, usually in the form of weekly payments;
  • payment of medical expenses;
  • lump sum compensation based on permanent impairment.

Under the South Australian Return to Work scheme, if you require time off from work as a result of a work injury, or are restricted in the hours you can work, you may be able to claim weekly payments based the average of your weekly earnings for the 12 months prior to the injury. These payments are usually limited to a maximum period of two years, paid at 100% of the average weekly earnings for the first year, and then at 80% for the second year. If you actually work during these periods and receive a wage, then you can claim "top-up" weekly payments for the period when you are not working.

You may also be entitled claim reasonable expenses associated with medical treatment. You can claim these expenses for 12 months, or if you receive weekly payments, for 12 months after your last weekly payment. You may also be able to claim travel expenses to and from medical and rehabilitation appointment, and in some cases you may be able to claim help at home while recovering from an injury.

There is an exception to the usual time limits on the above entitlements if you qualify as a seriously injured worker. In order to do so, you need to need to be assessed as having a 30% whole person impairment, by an accredited assessor, under the Impairment Assessment Guidelines. There are special rules which apply to these types of assessments. If you reach the 30% threshold, you are entitled to claim weekly payments until retirement age (as defined by the Act) and medical expenses indefinitely.

If you are assessed as having at least a 5% whole person impairment as a result of your physical injuries, then you may also entitled to claim lump sum payments for non-economic loss (similar to "pain and suffering") and future loss of earning capacity.

There are special transitional rules which apply to workers who were injured before the current legislation commenced on 1 July 2015.

Where a worker dies as a result of a work related injury, family members may be able to claim a lump sum death benefit, some funeral expenses and possibly a weekly dependency entitlement.

We invite you to make first no-obligation interview with one of our experienced workers compensation lawyers to receive advice on preparing an initial claim and for advice in relation to how best to access your entitlements.

For Workers: How do I make a claim

You need to obtain a Claim Form from your employer and provide your employer with a medical certificate and your Claim Form. A claim for compensation will include an injury sustained while you were at work, while you were working on work related business or while you were travelling for work or work related business. Your claims manager will investigate your claim and if your claim is accepted you will start to receive benefits under the scheme. If your claim is rejected you have a right to ask for the decision to be reconsidered by another officer. If you are not satisfied with the outcome, then your matter will be referred to the South Australian Employment Tribunal for conciliation.

For Workers: What if I am unhappy with a decision about my claim?

If your claim is rejected, or if you are not happy with the decision, then you should first seek legal advice about whether there is a legal basis for seeking a review.  The legislation specifies the types of decisions which can be reviewed.

If a decision is reviewable, and there is a legal basis for seeking review, then an Application for Review can be lodged in the South Australian Employment Tribunal.  The decision maker then has seven days within which to have the decision reconsidered by another officer. The decision will then be varied or confirmed.  In either instance, reasons must be give by the reconsideration officer.

If you are still not happy with the outcome, then the matter is referred to the conciliation phase of the Tribunal's process.

For Workers: What happens at the South Australian Employment Tribunal (SAET)?

If your matter is referred to the South Australian Employment Tribunal, then you should seek legal advice.

The proceedings will first be listed for an initial directions hearing before a conciliation officer.  The purpose of this hearing is to discuss the issues in dispute and what steps are necessary before an attempt is made to conciliate.

A conciliation conference is then listed at which the parties try to resolve the dispute by negotiation, with assistance from the conciliation officer where necessary.  Once a conciliation conference is listed, the parties are usually required to resolve the matter within six weeks.

If a matter is not resolved by agreement within the specified time, or if it becomes clear that the parties will not be able to reach agreement, then the matter is referred to a presidential member of the Tribunal who will manage the matter towards a full hearing.  There are further opportunities for negotiation at this stage of the process if the parties wish.

If the matter proceeds to a full hearing, then a Tribunal member who has not been managing the matter toward trial is allocated to determine the matter.  Evidence is heard and a decision is usually made within three months of the conclusion of the hearing.

If you are not satisfied with the outcome, then appeals are possible to the Full Bench of the Tribunal, and thereafter to the Full Court of the Supreme Court of South Australia, but only a question of law.

For Workers: What if I am an employee covered by the Comcare scheme?

Workers who are employed by the Commonwealth Government or employed by a large national company who has opted out of the State based scheme will be covered by the Safety, Rehabilitation and Compensation Act 1988 (Cth).  Entitlements of a similar to the South Australian Return to Work scheme are available, but there are some variations.  We have lawyers who deal with Comcare matters who can provide you with advice about your entitlements.

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