If you’ve suffered an injury at work which has been accepted as “compensable” by the relevant workers compensation insurer, you may have an entitlement to lump sum compensation for permanent impairment.
“Compensable” simply means that the injury falls within the terms of the Return to Work Act (SA) 2014, and has been accepted as a workers compensation injury.
Section 58 of the Return to Work Act 2014 (“the Act”) provides for payment of a lump sum to injured workers if they have suffered a permanent impairment in certain circumstances. This entitlement is only available for physical injuries and not for psychological or psychiatric injuries.
This lump sum payment is intended to compensate the injured worker for “non-economic loss”. This is also sometimes referred to as compensation for “pain and suffering” or for “loss of enjoyment of life”.
Basically, this type of compensation is intended to compensate the injured worker for the “human” or non-financial consequences of their injury. For example, the fact that the injured worker might not be able to play football anymore, or pick up their children, or do gardening.
You will be entitled to receive a lump sum payment for permanent impairment (a “section 58 payment”) if certain criteria are met.
1. Maximum medical improvement
First, you must have reached “maximum medical improvement”. This simply means that your condition is stable, and will not get any better with further treatment.
There is no hard and fast rule as to when “maximum medical improvement” is reached. Depending upon your circumstances, maximum medical improvement might be reached after 6 months or, more usually, after around 12 months, or even longer.
If you have had, or need to have surgery, it is unlikely that you will reach “maximum medical improvement” until at least six months after surgery or probably longer.
Sometimes a work injury might affect a number of different body parts. For example, a back injury might cause symptoms in the leg/s as well as the back. Also, a work injury might lead to “secondary injuries”. For example, medication taken for pain might cause dental problems or digestive problems. In such cases, “maximum medical improvement” must have been reached in relation to every body part or condition for which you are seeking lump sum compensation.
2. Permanent impairment
The next criteria is that you must have sustained a permanent impairment.
This means a loss of function of the relevant body part which is permanent.
The question of whether you have sustained a permanent impairment is determined by a doctor who has been trained in the appropriate method and “rules” relating to permanent impairment assessment. An accredited doctor must conduct an assessment, according to strict rules and guidelines, to determine whether or not you have suffered a permanent impairment.
If your claim relates to more than one body part or condition, it may be necessary for more than one doctor to assess permanent impairment, to ensure that the assessing doctor has the right expertise to make the assessment.
You have the right to choose the doctor (from a set list of accredited doctors) who conducts this assessment. Your lawyer will assist you in choosing the most appropriate doctor.
This is an important right and one which should be exercised carefully. When you tell the workers compensation insurer that you wish to undergo a permanent impairment assessment, they should send you (or your lawyer) a list of accredited doctors to choose from.
3. You must reach at least 5% impairment of the whole person
You will only be entitled to receive lump sum compensation if you have sustained permanent impairment amounting to at least 5% impairment of the whole person (called “whole person impairment”).
If you have a permanent impairment which is less than 5% whole person impairment, you will not be entitled to receive lump sum compensation.
If the assessing doctor concludes that you have a permanent impairment of 5% whole person impairment or greater, a mathematical formula applies to determine the amount of compensation you are entitled to receive.
Some examples of lump sum payments for a person who was injured at work in 2015 and meets the 5% impairment threshold:
For a 5% whole person impairment the compensation payable is $12,051.00.
For a 10% whole person impairment the compensation payable is $21,209.00.
For a 20% whole person impairment the compensation payable is $46,895.00.
The maximum amount, payable for a 100% whole person impairment is $482,014.00.
4. One assessment only
An injured worker is only entitled to have one assessment of permanent impairment conducted in relation to each work injury.
This is intended to avoid “doctor shopping”. This means that you should only proceed with your claim for lump sum compensation for permanent impairment when all body parts or conditions arising from your work injury have reached “maximum medical improvement”.
Because of the 5% “threshold” it is extremely important to include all possible body parts or conditions in the assessment.
A final note from the author
The entitlements available to injured workers under the Act are not generous, particularly since the legislation was amended in 2014.
Accordingly, Andersons believes that every injured worker should claim and receive every penny that they are entitled to.
Furthermore, If you have suffered a work injury that has led to a permanent impairment, in addition to any workers compensation entitlements, you might also be entitled to make a claim under your superannuation policy. Andersons can assist you to explore whether you can make a claim under your superannuation policy.
If you have any questions about your entitlement to lump sum compensation for permanent impairment as a result of your workplace injury, please contact today’s blog writer, Margaret Kaukas, Special Counsel, or other members of the Andersons workers compensation team.