AUSTRALIAN WORKERS UNION | SA BRANCH
WORKERS COMPENSATION ASSISTANCE Q&A
- *Do not engage Solicitors prior to discussing the matter with the Union.
- *Never resign from employment without consulting the Union first, whilst you have a Return To Work claim.
- *Do not accept treatment from ‘company’ doctors.
- *Do not accept advice from your employer regarding your entitlements whilst on compensation.
We regard the claim as your claim. It is therefore our task to strongly put across your side of the story as you would have it told. It is you, the member, who is the important person. While we are acting in relation to your claim, we take our instructions from you. No agreements will be made without your explicit consent.
As a financial member of the Australian Workers’ Union you will be provided with assistance, at no cost, in progressing your Return To Work claim through the conciliation process. This sets out the general rules of the Australian Workers’ Union representation of members in Return To Work matters.
Every matter will be individually assessed. It is important to note that the Australian Workers’ Union will only represent you while you accept our reasonable advice. You are always able to get a second opinion through your entitlement to an initial free interview with a Solicitor.
You should, wherever practical, report any work related injury/illness within 24 hours. If you lose time from work or incur medical expenses you MUST complete a Notice of Work Related Injury/Claim for Compensation Form.
These forms are available from Return To Work SA, your employer, Post Offices or the AWU. Lodge the form with your employer along with any medical certificates. ALWAYS RETAIN the copy marked ‘Workers Copy’.
As part of the return to work process, members have rights including:
- Make a claim for compensation
- Have prompt decisions made regarding your claim
- Have a decision made about provisional liability within seven calendar days (in most cases) of a claim for compensation being made
- Choose or change your doctor
- Have someone else with you as support at any meeting to talk about your claim. Eg- Union Representative
- Have all personal information kept confidential
- Get advice before signing anything
- Be provided with a copy of your return to work plan and be consulted during its preparation
- Have an interpreter present at meetings, appointments or over the phone
- Use an advocate, seek legal advice at any time and choose to be represented by a solicitor or an employee advocate (may include your union representative or health and safety representative)
- Lodge a complaint with your claims agent, self-insured employer and/or Return To Work SA
- File a notice of dispute with South Australian Employment Tribunal (SAET) to review decisions made about your claim
- Ask for a second opinion about medical issues
- Be treated with dignity and respect
- Have your cultural practices respected
- Be kept updated on the progress pf your claim
As part of the return to work process, members have the following responsibilities:
- Report your injury to your employer as soon as possible
- Get treatment for your injury
- Be actively involved in your treatment and return to work plan
- Comply with the requirements of a return to work plan (if you have one)
- Do suitable tasks your doctor says you are fit to do
- Attend an examination by a doctor (for an assessment only) or workplace rehabilitation provider nominated by your case manager. Remember these doctors are only permitted to examine, assess and report. Treatment is always by a doctor of your choice.
- Advise your case manager if you change your address or phone numbers
- Advise your case manager of any earnings you receive while you are in receipt of weekly payments
- Attend an appointment of an independent medical examiner if this has been organised by your case manager
- Please note failure of a worker to fulfil their responsibilities may result in a claim being rejected or may impact entitlement to weekly payments.
Call your Union Representative if you are unsure about matters concerning your claim and/or your entitlements.
Your employer has a right to
- Receive notice of prompt decision making on a claim
Ask your case manager to:
- Review a claim if they believe that weekly payments to you should be stopped or reduced
- Arrange for you to attend an examination by a recognised medical expert
- Provide them with copies of medical reports upon written request and ask for a report on your medical progress and capacity for work
- Take into consideration any other relevant factors
- File a notice of dispute with South Australian Employment Tribunal (SAET) to review decisions made about your claim
- Lodge a complaint with the claims agent and/or Return To Work SA (RTWSA) if they are dissatisfied with the service they have received
- Be consulted during the preparation of your return to work plan, and be provided with a copy of the plan
- Have an interpreter present at meetings, appointments or over the phone if necessary
- Seek legal representation at any time and choose to be represented by a solicitor or an employer advocate
- Be treated with dignity and respect
- Have their cultural and ethnic practices respected
- Be kept updated on the progress of your claim
Your employer can also contact your doctor, only with your consent to discuss:
- Your diagnosis or prognosis for matters strictly relating to your current claim
- How they can help your recovery and help you stay at or return to work
Your employer has responsibility to:
- Provide a safe working environment
- Provide suitable employment and be actively involved in your return to work
- Comply with the requirement of your return to work plan (if you have one)
- Keep in touch with the case manager at least until you are doing normal work and normal hours (this includes notifying the case manager if there is any change in type of work or hours)
- Not dismiss you without giving you and your case manager at least 28 days’ notice
- Pay weekly payments for the first two weeks of incapacity after a claim is accepted (if required)
Please note: failure of an employer to fulfil their responsibilities may result in the employer being penalised and/or prosecuted.
It is the responsibility of Return To Work SA/Exempt Employer to determine, to accept or reject claims as quickly as possible. You must be advised in writing of the outcome. To make a decision, Return To Work SA/Exempt Employer may require you to be examined by a recognised medical practitioner.
Failure or refusal to attend such an examination may result in a delay in the processing or rejection of your claim. If it is not possible to determine the claim quickly because additional information is required, your income can be continued by taking sick leave or requesting Return To Work SA/Exempt Employer to pay interim benefits until your claim is determined.
Not all claims are managed by Return To Work SA. The Return To Work Act 2014, provides for the existence of ‘Exempt Employers’. To be an ‘Exempt Employer’ simply means that the employer manages their own claims. These employers, whilst managing their own claims, must do so in accordance with the Act. They are subject to the same independent dispute resolution mechanisms as the non-exempt.
In the vast majority of cases the AWU will be able to represent you at conciliation.
If a dispute is not resolved at conciliation, it will go to either Arbitration or a Judicial Determination.
Arbitration takes place where there is a disagreement over something that is not a medical issue, for example did the worker fall at home or work? The AWU will assess each arbitration matter individually to assess whether assistance can be provided or if the matter will need to be referred to a solicitor.
If a dispute goes to a Judicial Determination the worker will be awarded an amount for their legal costs, even if they lose, unless the worker is found to be unreasonable in taking the dispute to the Judicial Determination. As such, the worker can retain Solicitors at this level without ending up paying significant legal costs. It is important to note that awards of costs do not always cover all the legal fees incurred. The AWU will not represent you at a Judicial Determination. The AWU will give you a referral to a Solicitor who will give you an initial free interview.
If you are unable to attend work because of a work related injury, your normal wage or salary will continue to be paid for a maximum of one year, after which time it will be reduced to 80% for a further year and reviewed in accordance with the Return To Work Act 2014. In many cases overtime would not be included in your normal wage. As wage or salary is maintained through Return To Work payments, other entitlements of your employment are protected by your Award.
In accordance with the Act, entitlements to sick leave, annual leave and long service leave (where appropriate) continue to accrue. If your absence is continuous for 52 weeks or longer, special provisions may apply in respect of your annual leave. Contact your Union Representative for more information on your personal leave entitlements situation.
The role of the Return To Work Co-ordinator is to co-ordinate medical and recovery/return to work plans to assist you in achieving an early and safe return to the workforce. You may, if you wish, nominate the rehabilitation provider of your choice. Members have the right to be actively involved in the development of any plan. The Union urges you to do so. The Return To Work Act 2014, requires that you give your full co-operation to your approved plan. Failure to do so could result in weekly payments being suspended.
Under the Act, you are required to undertake any duties for which there is medical clearance and so far as is reasonably practicable which are the same as, or equivalent to the duties you performed immediately before your incapacity. You should not seek or accept any legal or industrial advice from your Return To Work Co-ordinator. You should notify your Union Representative if you feel the Return To Work Co-ordinator is undertaking claims management functions.
If you have any legal or industrial problems or queries regarding your claim, contact your Union Representative.
If an injury or illness sustained in the course or arising out of work results in any form of permanent disability, you may be entitled to a lump sum payment for permanent loss of function or disfigurement. If you believe that this may apply to you, you should contact your Union Representative.
Lump Sum Payments (could be available for)
- A lump sum payment (non-Economic loss) for physical injuries where the whole person impairment (WPI) is 5% or greater
- An additional lump sum (economic loss) for physical injuries where the whole person impairment (WPI) is 5% or greater and less than 30% (not available for hearing loss or psychiatric claims)
- The maximum lump sum payment for death will be made to a workers partner(s) and children regardless of dependence
- One assessment for WPI
Any employee who works in an environment capable of causing noise induced hearing loss is entitled to claim compensation if they have suffered a noise induced hearing loss as a result of that noisy work environment. The hearing loss must exceed 5% binaural loss before a permanent disability lump sum payment can be made otherwise your claim for noise incurred hearing loss will be accepted for medical expenses only. Any worker wishing to pursue a claim for hearing loss should contact their Union Representative.
The ‘Act’ provides protection of employment in certain circumstances to injured workers. Contact your Union Representative immediately if your employer attempts to terminate your employment whilst on compensation.