It is now well known that many entitlements previously available to injured workers under the old workers compensation legislation have been stripped back under the current Return to Work Act 2014 (SA) (“the Act”).
The most heavily debated and, in the view of many, the harshest restriction is that income maintenance payments now cease after two years from the date of injury, unless the worker is deemed a “seriously injured worker”. To meet the criteria for a seriously injured worker, the percentage of impairment must be 30% or higher.
What many don’t realise is that injured workers can still make a claim for economic loss under the Act. This economic loss payment is available to workers assessed as having a permanent impairment between 5% and 29% who have suffered physical injuries only. It does not apply to claims relating to a psychological injury or hearing loss.
Economic loss claims do not apply for those deemed to be a seriously injured worker as these people are entitled to income maintenance payments until they reach retirement age.
The amounts that injured workers can claim are based on several factors and the calculation of the entitlements are not as straight forward as it would seem.
Prior to receiving any advice on what economic loss claim a worker may be entitled to, the injured worker needs to undergo a whole person impairment (WPI) assessment by an accredited medical practitioner and a determination needs to be made as to whether the injured worker is classified as a seriously injured worker or not.
If the injured worker does not meet the criteria of a seriously injured worker, the percentage of impairment from this assessment can be used to determine the lump sum applicable according to the scale in the RTWSA Schedule of Sums.
The dollar amount will differ from case to case and the amount received depends on a number of factors, such as the age of the injured worker and the regular number of hours they worked at the time of the injury.
For example, a worker aged in their 20s or 30s employed on a full time basis is likely to receive a higher amount compared to an older worker in their late 50s or early 60s who is working casual or part time hours.
This is the case even if the young worker and the older worker suffered the exact same injury and have the same percentage of impairment.
The “formula” used to calculate an economic loss claim is essentially:
prescribed WPI sum x age factor x hours worked = lump sum
If a worker suffers from, or has sustained two or more injuries from the same incident, the injuries are treated together as one injury.
Economic loss claims only apply to incidents that occurred after 1 July 2015, and injured workers can only make one claim for economic loss arising from the same incident. However, if the injury is an aggravation, acceleration, exacerbation, deterioration or recurrence resulting from an earlier claim, and the injured worker has already received a lump sum payment in relation to that injury, the worker is entitled to further payments. It is important to note that any new lump sum payment will be reduced, to take into account any lump sum previously paid.
It is important for workers to discuss with their case managers about when the appropriate time to undergo the whole person impairment assessment is and to ensure that all steps have been taken, such as obtaining medical reports to be provided to the whole person impairment assessor. It is also advisable that the injured worker obtains independent legal advice prior to finalising any economic loss claim.
This article was written by Senior Associate, Natasha Budimski.
Practice Area: Road Accident & Other Injury Claims