Under the changes brought about by the Return to Work SA Act 2014 (“RTWSA”), a number of entitlements that were previously available to workers were stripped back, with claimants losing their income maintenance payments after two years, and their medical expenses after three years. Previously, injured workers could claim these expenses without strict time limitations and depending on their level of incapacity, they could also claim for employment and treatment needs.
The only exception to these new time limits applies to workers deemed to be a “Seriously Injured Worker”, meaning they have sustained a whole person impairment of 30% or more.
These limitations also applied to public sector and emergency services workers such as the South Australian Police, Fire Services, Nurses and SA Ambulance Officers.
Given the high risk situations that these workers deal with, it’s understandable that many employees within these fields were concerned about their futures, should they ever be injured at work.
As a result of the changes to RTWSA, the South Australian Police embarked on a “Protect our Cops” media campaign in 2015 which sought to highlight the impact that the new legislation would have on police officers who were injured on the job.
As a result of public support generated by the campaign, the following year South Australian Police entered into lengthy negotiations with the State Government that ultimately saw the return of some protections for their workers if they were ever injured on the job.
Rather than amend the RTWSA Act, the negotiations resulted in the Public Sector Enterprise Agreement (“the Agreement”) being amended to specifically include additional injury and income protections for injured workers employed in the South Australia Police Department and other public sector departments. A full list of the agencies which are covered by the new public sector enterprise agreement can be found in Section 4 of the Agreement. You can access the Agreement here.
The SA Ambulance Service and SA Health Service, both of which have their own enterprise agreements separate to the Public Sector Enterprise Agreement, were also subsequently amended to be in line with these additional protections.
Whilst obligations remain on both the insurer and the worker to return the worker to suitable employment when reasonably able to do so, employees covered by these enterprise agreements are now able to focus on completing their rehab without the financial restrictions that affect other workers employed in the private sector.
In order to access these extra protections, there is a range of criteria that an injured worker needs to meet. The criteria is outlined below.
a) The worker is temporarily or permanently incapacitated for work as result of a physical or psychological injury sustained when he or she was at work or lawfully exercising their duties; and
b) The injury:
i. resulted from conduct directed at the worker that constitutes a criminal offence; or
ii. occurred as a direct and immediate result of conduct that constitutes a criminal offence; or
iii. occurred in other circumstances where the worker is placed in a dangerous situation in the course of, or as a consequence of, acting in or engaging in their duties or position, excluding psychological injury other than that caused as a consequence of a specific incident or incidents; and
c) The worker has an accepted claim pursuant to the RTWSA Act; and
d) The worker has had their individual entitlements exhausted pursuant to the RTWSA Act; and
e) has not been assessed as having a 30% or more Whole Person Impairment (WPI); and
f) has not made a return to work within the meaning of the RTWSA Act.
Should an injured worker satisfy the above criteria, they would be entitled to ongoing cover for reasonable medical expenses as a direct result of the accepted claim, along with top up income payments of 80% notional weekly earnings or 80% of the difference between actual earnings and notional weekly earning until their retirement or return to work.
This is subject to a work capacity review as per the repealed legislation, being the Worker’s Rehabilitation and Compensation Act 1986 (SA) (“WRC Act”).
These benefits apply to accepted claims, regardless of whether the claim was made before or after 1 July 2015.The worker is also entitled to a redemption payment for both medical and financial expenses.
Any redemption needs to be carefully considered and independent legal advice should be obtained before entering into a redemption payment as these agreements essentially result in the worker “opting out” of the RTWSA Scheme. There may also be losses of future entitlements and benefits under the applicable enterprise agreement.
If a worker satisfies the criteria above, in order to invoke the entitlements offered under these enterprise agreements, the worker or their legal representative has to make an application to their case managers pursuant to the relevant section of the enterprise agreement.
This step of the process can only be done once all their entitlements under the RTWSA Act have been exhausted and if the worker meets the above criteria. Such an application would involve notifying the relevant insurer in writing that the worker intended to invoke these entitlements.
Workers should ensure that leading up to the exhaustion of their entitlements under the RTWSA Act, that they have a discussion with their employer’s insurer, Union and/or legal representative to determine firstly, whether they meet the relevant criteria and if so, how to make an application, avoiding as much disruption to their claim as possible.
In the event that such an application is rejected on the basis that they did not meet one or more of the criteria, a dispute could be lodged by the worker in the South Australian Employment Tribunal. Legal advice should be obtained prior to issuing such a dispute.
For the public sector and emergency services workers who protect and serve our communities it is no doubt a huge relief to know that, should they be injured in the course of duty, they will still have access to ongoing medical and income support.
It is important that prior to making an application for support under the relevant enterprise agreement that any injured worker seeks independent legal advice to ensure that they understand the entitlements on offer, as well as what they could potentially lose should they no longer be covered under the RTWSA Act. We recommend that injured workers also speak to the insurer funding their claim and any applicable Union before making any final decisions on how to proceed.
This article was written by Senior Associate, Natasha Budimski.
Practice Area: Road Accident & Other Injury Claims