Proposed changes may prevent some injured workers in South Australia from accessing the NDIS, even where their workers compensation entitlements are disputed or have ended.

A workplace injury can leave someone with permanent limitations long after their weekly payments and medical expenses have stopped. Until now, an injured worker with significant ongoing disability may also have been able to obtain support through the National Disability Insurance Scheme (NDIS).

Proposed Commonwealth legislation could change that for people who become NDIS participants from 1 January 2028. If the legislation proceeds in its present form, an impairment caused by a work injury may be excluded from the NDIS where workers compensation legislation provides compensation or other benefits for it.

That sounds straightforward until the two schemes do not meet neatly. What happens where the workers compensation insurer disputes the claim? What happens when the worker’s limited medical entitlement ends, but the disability does not? And what happens to a worker whose incapacity is profound, but whose permanent impairment falls just below the statutory threshold for a “seriously injured worker”?

These questions make it increasingly important for significantly injured workers to understand and protect all of their workers compensation entitlements.

What are the main risks for injured workers?

The main risks arise where a workers compensation claim is disputed, time-limited entitlements have ended, or the worker has a permanent disability but does not meet the serious-injury threshold.

• The claim is disputed: the insurer may deny that work caused the injury, reject one of several conditions or refuse particular treatment.
• Entitlements end: weekly payments and medical-expense entitlements may expire even though the worker’s disability and need for support continue.
• The worker falls below the serious-injury threshold: a worker can have profound and permanent limitations without qualifying for the lifetime entitlements available to a seriously injured worker.

The proposed legislation does not yet provide a complete answer to these situations. Much will depend on NDIS Rules that have not been made.

What support can the NDIS provide after a workplace injury?

The NDIS may fund disability-related supports that are not always provided, or are not provided indefinitely, through an ordinary workers compensation claim.

Depending on the participant’s individual needs and plan, those supports may include personal care, assistance with daily activities, mobility equipment, assistive technology, home modifications, therapy and support to participate in the community.

The NDIS is not, however, a compensation scheme. It does not compensate an injured person for lost wages, pain and suffering or reduced future earning capacity. Those are matters addressed, to differing degrees, through workers compensation entitlements.

What can an injured worker receive through workers compensation?

A South Australian worker with an accepted claim may be entitled to income support, medical treatment, rehabilitation services and, where an injury causes permanent impairment, one or more lump-sum payments.

For a worker who is not classified as seriously injured, weekly payments are generally available for up to two years. Reasonable and necessary medical expenses ordinarily continue for a limited period, generally up to 12 months after income support ends. Exceptions can apply, including for certain pre-approved surgery and other prescribed expenses.

Workers who meet the statutory definition of a seriously injured worker have materially different entitlements. They may receive ongoing weekly payments, generally until retirement age, and lifetime reasonable and necessary medical and related support.

The difference between those two categories can therefore determine whether support ends after a few years or continues for the rest of the worker’s life.

The following comparison shows the general position. Individual entitlements can differ because of exceptions, transitional provisions, elections and the circumstances of the particular workers compensation claim.

What does “seriously injured worker” mean in South Australia?

A “seriously injured worker” is a technical legal classification based principally on an assessment of whole person impairment, not an ordinary description of how badly someone has been hurt.

Under the current South Australian scheme, the usual threshold is at least 35% whole person impairment for a physical injury or at least 30% for a psychiatric injury. Transitional and special provisions can apply, so the relevant test may depend on the worker’s circumstances and the history of the claim.

Whole person impairment is not the same as the percentage by which someone has lost their capacity to work. It is also not a direct measurement of pain, the number of operations a person has undergone or the extent to which the injury has disrupted family and daily life. It is assessed under technical guidelines after the condition has stabilised.

The result may depend on which injuries have been accepted, whether different impairments can be combined, the medical evidence about causation and whether any deduction is made for a pre-existing condition. An impairment assessment should not be regarded as simply another medical appointment. It can determine access to lump-sum compensation and, in the most serious cases, lifetime support.

Can someone be permanently disabled without being a “seriously injured worker”?

A person can have a substantial and permanent disability but still fall below the statutory serious-injury threshold.

A worker assessed at 30%, 32% or 34% whole person impairment for physical injuries may face major lifelong restrictions but not qualify for the entitlements available to a seriously injured worker. The same problem can arise at lower impairment levels where the particular injury has an unusually severe effect on the person’s occupation or independence.

The workers compensation scheme does not determine serious-injury status by asking generally whether the worker’s life has been seriously affected. It applies the statutory impairment test. That distinction may become particularly important if the NDIS is also unavailable because the impairment arose from work.

Can an injured worker receive lump-sum compensation for permanent impairment?

An injured worker with a qualifying permanent physical impairment may be entitled to lump-sum compensation in addition to weekly payments and medical expenses.

The Return to Work Act provides a lump sum for non-economic loss arising from a qualifying permanent physical impairment. A worker may also have an entitlement to a separate lump sum for economic loss. Its calculation can be affected by the worker’s impairment percentage, age and working hours, as well as statutory limits and exclusions. Psychiatric injury and consequential mental harm are excluded from both of these statutory lump sums.

Some seriously injured workers may elect to receive an economic-loss lump sum instead of continuing weekly payments and return-to-work services. Redemptions of particular ongoing liabilities may also be possible in some cases. These decisions can have lasting consequences and should not be made by looking only at the amount offered.

Before accepting an impairment assessment, lump sum, redemption or settlement, a worker should understand what will happen to weekly payments, medical expenses and any longer-term disability support. Once an entitlement has been brought to an end or exchanged for a lump sum, it may be difficult or impossible to restore.

How could the proposed NDIS changes affect injured workers?

The proposed changes would generally prevent a new applicant from using a work-related impairment to qualify for the NDIS where workers compensation legislation provides compensation or other benefits for that impairment.

The National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations) Bill 2026 is presently before the Commonwealth Parliament. If enacted in its current form, the relevant exclusion would commence on 1 January 2028.

People who became NDIS participants before that date are intended to remain protected from the new exclusion, provided they continue to meet the other eligibility requirements. A person with more than one impairment may also remain eligible where at least one qualifying impairment is not excluded. The Bill’s specific definition of work-related injury excludes a disease, although the final legislation and supporting rules will need to be considered before conclusions are drawn about occupational disease claims.

The detail will depend heavily on NDIS Rules that have not yet been made. Those Rules will determine when workers compensation legislation is treated as providing, or not providing, compensation in an individual case.

What if the workers compensation claim is disputed?

The Bill allows future Rules to preserve access where a compensation claim is unresolved or has been refused, but the precise protection is not yet known.

This matters because workers compensation disputes can take time to resolve. An insurer may deny that employment caused the injury, accept one condition but reject another, or dispute whether particular treatment or personal assistance is reasonably necessary.

Without an effective rule for these cases, an injured person could face an unacceptable gap: the workers compensation insurer says that the condition is not compensable, while the NDIS treats the impairment as one that belongs in the workers compensation system.

The Government’s published overview says the Rules are intended to allow support while someone is waiting for a decision about workers compensation. Whether that protection will extend throughout reviews and appeals, or where only part of a claim is accepted, remains to be seen.

What happens when workers compensation entitlements end?

It is not yet clear whether an injured worker will become eligible for the NDIS after their time-limited workers compensation entitlements have expired.

The Bill could be read as excluding an impairment because workers compensation legislation provides benefits for that kind of work injury, even if the particular worker’s benefits have ended. On the other hand, it permits the Rules to determine that a compensation law does not provide benefits at a particular time. That could allow NDIS access once the worker no longer has a current entitlement.

The eventual Rules will be critical. If they do not address this issue adequately, workers below the serious-injury threshold may be left with a permanent disability but no continuing support from either system.

Why should significantly injured workers obtain legal advice early?

Early legal advice can help ensure that every compensable injury and entitlement is properly identified before important decisions become difficult to reverse.

For a significantly injured worker, this may involve examining whether all physical and psychiatric consequences have been accepted, whether impairments should be combined, whether serious-injury status should be investigated and whether the permanent impairment assessment has been conducted correctly. It may also involve challenging the rejection of a claim, a refusal of treatment or a decision to discontinue payments.

The timing of an NDIS application may also become important. A worker who may satisfy the existing NDIS access requirements should not assume that the same opportunity will remain available after 1 January 2028. Because the proposed transitional protection is tied to becoming a participant, rather than merely considering or commencing an application, potentially eligible workers should investigate their position well before that date.

Most importantly, an injured worker should obtain advice before accepting a permanent impairment assessment, lump sum, redemption or settlement. Each can affect the support and compensation available in the future.

If a workplace injury has caused permanent limitations, your weekly payments or medical expenses are approaching an end, or you are unsure whether you may qualify as a seriously injured worker, our workers compensation lawyers can advise you about your claim, permanent impairment assessment, lump-sum entitlements and the steps available to protect your longer-term position.

This article discusses a Bill that had not become law at the time of writing. The legislation may change during the parliamentary process, and its practical operation will depend on NDIS Rules that have not yet been made.