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What happens to my workers compensation payments after two years?


Are your workers compensation payments about to cease after the two year arbitrary period

If you've received a notice that your South Australian workers compensation payments are stopping, contact us immediately for advice.

When the Return to Work Scheme for South Australian workers compensation claims was introduced in July 2015 many workers and their representatives expressed their concerns about limitations that the law placed on the ability to receive income support (your weekly payments).

These limits were seemingly arbitrary and can apply even if a worker has no real prospects of returning to work because of their workplace injury. This unfair attack on injured South Australian workers has led us to lobby Parliamentarians to make changes to this unjust system that many workers now find themselves embroiled in.

What do the Return to Work laws say about your weekly payments?

The general rule of thumb is that a worker is entitled to a maximum period of two years of income maintenance from the date of the incapacity.

This is inconsistent with the earlier repealed law (WorkCover) which allowed a worker to receive ongoing income maintenance as long as they could prove that they were totally incapacitated for employment as a result of their workplace injury (or they were back at work in a reduced capacity, but exhausting the limit of their capacity to work).

These are complex concepts, but fundamentally the old law made decisions regarding income entitlements based on a worker’s level of capacity for employment, whereas the current law fails to give the issue of capacity much consideration when it comes to determining a worker’s entitlement to weekly payments. In many cases, it simply applies an arbitrary cut-off date.

What options do I have to receive payments after two years?

The two year rule is not always clear cut. There are many factors that can determine whether a worker has a right to seek compensation beyond the expiration of the two year limit, or even whether they are entitled to receive benefits for the full two years (remember that the right to income maintenance is for a maximum of two years).

The first thing to keep in mind is that the date of injury and the date of incapacity is not necessarily the same thing.

For example, consider a worker who hurts their back when they fall off a chair at work on 1 January 2017 but they continue working with increasing levels of pain until 1 April 2017. At this time, they finally have to stop work because the pain levels are too great.

Does the period of income maintenance start from the date they fell off the chair, or does the period start from the date that they stopped work?

Sometimes this is an easy question to answer and sometimes it depends on a medical assessment. What if a worker in the same situation took the afternoon off work when they fell off the chair but returned to work the next day after some bed rest? When did their incapacity arise?

Arguably, the date of incapacity in this latter example is indeed the same date of the injury because the incident caused them to cease work and go home. But questions regarding the date of incapacity expose a grey area in the law, and the complexities become even more apparent with injuries that develop gradually over time; particularly psychological injuries where it is often very difficult to accurately pinpoint a specific date or time when an injury occurred.

What if the same worker leaves work on 1 April 2017 and spends one month recovering before returning to work on 1 May 2017. However a month later the pain is again unbearable and they have to stop work. Should that month back at work be taken into consideration when applying the two year rule?

If you’re on workers compensation and it’s nearing two years, ACT NOW

"ACT NOW
For immediate assistance, get in touch directly with today's blog writer, experienced workers compensation lawyer, Michael Irvine"

If you have been incapacitated for employment and the two year deadline is approaching, it is to be expected that you will become concerned your entitlements stop.

If you are worried about the expiration of your entitlement period, you should seek legal advice from a lawyer experienced in South Australian workers compensation as soon as possible.

A decision to stop your income maintenance at the expiration of the two year period should be in writing by way of a “formal determination” and any formal determination should be disputed if you believe that the determination is flawed and reasonable grounds exist to dispute the decision.

Workers and their solicitors may be able to mount arguments that the income maintenance entitlement should not cease after two years but should, in fact, continue beyond two years.

Some factors that might determine eligibility to receive a larger period of income maintenance include the severity of the injury and whether or not a worker reaches a ‘seriously injured’ threshold, what aggravations or exacerbations the worker has had since the date of the initial trauma, whether the worker has suffered further injuries that have developed since the initial injury (including the development of a psychological injury), etc.

If you have been injured at work and you are concerned about your entitlements under the workers compensation laws, get in touch with today’s blog writer, highly experienced workers compensation lawyer, Michael Irvine.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.