July 7, 2018

A recent decision of the Supreme Court is of real importance to anyone with a work injury who might need surgery or expensive medical treatment in the future.  If you have a workers compensation claim and your entitlement to medical expenses is about to end then urgent action might be required to protect your interests.

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Historically in South Australia under the workers’ compensation legislation, a worker who suffers a work injury in the course of employment would be entitled to weekly payments of income maintenance and medical expenses.  Those medical expenses would be open to the injured worker for the rest of their life.  Such medical expenses include the reasonable costs of surgery and any associated costs with the procedure.

From 1 July 2015 the Return to Work Act 2014 came into operation in South Australia.  The Return to Work Act limited the period of entitlements with respect to income maintenance but also to medical expenses..  Under the current Act, a worker’s entitlement to medical expenses is limited to a period of 12 months from the last date of payment of income maintenance. The maximum medical entitlement period for an injured worker is three years from the date of injury.

Until now, there was some speculation whether an injured worker would be entitled to surgery outside of the medical expense entitlement window under the Act, unless specifically pre-approved by the Compensating Authority (the insurer), if it was recommended that such surgery be delayed due to medical advice or due to the injured worker’s requirement for work.

On 1 June 2018 the Full Court of the Supreme Court of South Australia handed down the decision in Return to Work Corporation v Rudduck & Karpathakis, which has provided some clarification on this important issue.

There are two mechanisms in the new Act whereby a worker may seek what can be referred to as ‘pre-approval’ for medical treatment, including surgery. The first section 33(17) allows a worker to request the cost of medical treatment required now, or within the medical treatment period. The second section 33(21) specifically relates to a request for pre-approval for surgery to occur at a time in the future, outside the medical treatment period.

It is important when requesting pre-approval for treatment and particularly surgery, that the correct procedure is followed and that proper notice is given pursuant to the relevant section of the Act, containing all the necessary information and be made within the time limitations. What this means for injured workers requiring future surgery outside of their medical expense entitlement window under the Return to Work Act is that they will need to put their Compensating Authority on notice as to the type of surgery that may be required in the future, however, they will not need to comply with the onerous requirements as set out in Regulation 22 of the Return to Work Regulations.

It is important to be aware that if a worker suffered an injury before 1 July 2015 that the time for making an application for pre-approval for surgery closed on 1 July 2016.

The Return to Work Act has introduced significant changes to the way in which the workers compensation scheme in South Australia operates and many injured workers are confused about their entitlements.  If you have a workers compensation claim, Websters Lawyers have a team of experienced workers compensation lawyers to assist you to through your claim.  For a free first consultation called 8231 1363 or end through a contact form here.