D-Day looming for many injured South Australian workers' on 1 July 2017

For many South Australian injured workers, their world will change on 1 July 2017.

I want this article not only to be informative, but to encourage debate and discussion in society, and most importantly in the Halls of Parliament, where this “mess” began. More of this at the end of the article.

Why will the lives of injured South Australian workers, change, you ask? The reason lies in changes made to the South Australian WorkCover Scheme, some 2 years ago by the Return to Work Act 2014, the effect of which is that injured workers on the scheme as at 1 July 2015 will lose entitlement to ongoing income maintenance payments as from 30 June 2017, unless they have been classified as having a whole person impairment (WPI) of 30% or more. For a worker injured on or after 1 July 2015, unless he or she also has a WPI of 30% or more, his or her income maintenance payments will also cease after two years.

A worker assessed with a WPI of 30% or more, is described as a “seriously injured worker”. The 30% WPI level is potentially a high hurdle to overcome. Chapters can be written about the assessment guidelines and other regulations relating to the assessment process alone.

Those injured workers, not classified as a seriously injured worker, will have little option but to seek Centrelink payments. Depending on their pre-injury income, for many, a significant reduction in income will occur. The impact that this may have on those workers, their family, and even on the community (through the ripple effect of what financial distress causes) is likely be to be significant. For a worker injured on, or after 1 July 2015, unless he or she also has a WPI of 30% or more, his or her income maintenance payments will also cease after two years.

Unfortunately, I am seeing, the start of the ‘ripple effect’, now. There are community organisations that offer financial counselling, which will be vitally important for these workers facing a substantial reduction in income, and I suspect these resources will be stretched. I would encourage the seeking of advice from a financial counsellor or financial planner NOW, for those injured workers likely to face cessation of weekly payments come 1 July. For other workers, facing the same event at the two-year mark after their injury, seeking this advice well in advance of the two-year mark, is prudent.

The second ‘kick in the guts’, will occur a further 12 months after the date income maintenance payments cease, when the same legislation in broad terms (there are some exceptions), will stop payment of medical treatment expenses, unless the 30% WPI level is met. It is not hard to imagine how difficult this will be. In my experience, as a compensation lawyer, there are many injured workers who rely on treatment for extended periods of time. Prescription medication is one of these. So, a worker with a psychiatric injury, relying on antidepressant medication or a worker with a physical injury relying on pain relief medication, may not have the benefit of these being paid by the scheme. Visits to doctors, allied health professionals like physiotherapists may also be caught. Once again, these workers will have to rely on any benefits under the Commonwealth Scheme or otherwise face further financial hardship, or worsening symptoms, which understandably, can adversely affect quality of their day-to-day activities.

Fortunately, there are a good number of caring and supportive doctors and mental health professionals out there. If the need arises, please use them.

What legal avenues, are currently available to an injured worker, to remain on income maintenance payments?

Option 1: The new scheme, presently enables a worker to make an Application to the Return to Work Corporation of South Australia, for an interim decision that the worker will be taken to be a seriously injured worker, if the Corporation is satisfied, or it appears, that the worker’s injury has or will result in permanent impairment; and furthermore, it appears that the degree of whole person impairment is likely to be 30% or more. There are no strict timeframes in the legislation as to how long the Corporation has, to make a decision. Anecdotal information suggests that there are a significant number of such applications, currently before the Corporation, and one would need to be an eternal optimist to believe that all of these decisions will be made before 1 July 2017.

Option 2: If a worker’s injuries have reached what is described as maximum medical improvement, or which I loosely describe as having stabilised (which does not mean recovery, but simply the injury has plateaued), then there is a mechanism in the scheme for an assessment to made of permanent impairment. There is a certain process which needs to be gone through, to enable an assessment to be made by an accredited assessor, and in my experience this process takes several months, depending on what information the Claims Agent or Self-Insurer has.

Having regard to my comments above, time is of the essence, as until the process outlined in Options 1 and 2, are commenced, ‘the clock has not started’.

It is important to note, that if a worker is classified as a seriously injured worker after 1 July 2017, then income maintenance payments will be backdated to 1 July 2017. The worker, however, will still have to adjust to no income maintenance payments being paid after 1 July 2017 in the interim.

The concept of a WorkCover scheme not providing for proper medical treatment support after two years, unless 30% WPI exists, is primitive, in my opinion, both as a lawyer and a citizen. The South Australian government (as demonstrated by the impact of the changes), is attempting to pass financial liability back to the Commonwealth (through Centrelink and Medicare) and wiping their hands of liability for income support and proper medical treatment support, for South Australian workers. This demonstrates to me, a classic case of ‘passing the buck’, so that no longer do South Australian employers fund such benefits through WorkCover premium contribution, but all Australian taxpayers now pay for South Australia Parliament’s action. How fair is that? Fairness is always a relative term, and all governments, unfortunately have a pattern of interfering with law abiding citizen’s rights. Before changes to the WorkCover scheme, there were changes to the CTP scheme in South Australia, which provides ‘cover’ in the event of motor vehicle accident injuries.

Changes made to South Australia’s CTP scheme, effective 1 July 2013, has also produced many hardships. Until someone is unfortunate enough to be involved in a car accident, many would have not previously understood the impacts of the changes, as the situation ‘did not apply to them’, at the time the scheme was changed. Once you are injured, and make some inquiries, you then understand the limitations imposed on being entitled to compensation.

It appears to me, that one of the substantial effective ways that laws are changed, is by considerable public outcry. In the compensation area, lawyers, and insurance companies alike, may have assertions of self-interest levied against them, if they make a comment either way. It is only when a groundswell of public opinion exists against unfair actions of legislatures, that the best chance of having changes made, occur. After all, it appears what hurts politicians’ most are votes, or lack thereof!

Injury compensation lawyers, can provide advice and assistance concerning the relevant scheme. To combat what appears to you to be unjust changes to ANY legislation, you can speak or write to your Member of Parliament, journalist, newspaper or telephone your local radio station talkback program.

If you are injured, please contact an expert compensation lawyer here at LawCall, for a no obligation initial consultation or complete the free case appraisal form.