WORKER'S COMPENSATION: IF I'VE BEEN INJURED UNDER THE PREVIOUS LAWS, CAN I CLAIM?
- By Glen Pearce -
After a woman injured her arm at work, she made a worker’s compensation claim for weekly payments. Her claim was complicated because her injury spanned the period in which the old worker’s compensation laws were replaced by the new laws. This case shows how important it is to get legal advice when making a worker’s compensation claim, because the law may be far more complex than expected. Websters Lawyers was proud to conduct this case on the woman’s behalf, achieving a great result.
Background – worker’s compensation weekly payments
The woman fractured her arm at work in December 2014. She needed surgery so that a metal plate and screws could be inserted to hold the bone in place. Four days after the injury, she returned to work on full-time duties. Then the following events occurred:
- In January 2015 her work hours were reduced to five hours per day and she was receiving worker’s compensation “top-up” payments.
- On 2 February 2015, she resumed working her pre-injury hours.
- On 11 February 2015, the worker’s compensation claims agent discontinued her weekly top-up payments.
- By June 2015, the woman was experiencing ongoing pain and discomfort in her arm.
- On 1 July 2015, new worker’s compensation laws came into operation in South Australia.
- In August 2015, the woman had further surgery to remove the plates and screws from her arm. She spent three weeks recovering from the surgery, during which time she was unable to work.
- Following the recovery period, the woman returned to work full-time but on modified duties.
The woman claimed income maintenance payments (also known as weekly payments) for the three weeks in which she was unable to work. The claims agent rejected her claim and the woman took legal action to have her claim reviewed by the South Australian Employment Tribunal.
The single judge of the Tribunal decided that the woman wasn’t entitled to the weekly payments. She appealed the decision and the Full Bench of the Tribunal decided that she was entitled. The claims agent appealed to the Full Court of the Supreme Court of South Australia, arguing that the new laws didn’t allow for weekly payments to be made in the woman’s situation. It said that because the woman’s weekly payments had originally been discontinued in February 2015, she wasn’t then entitled to any further weekly payments.
Full Court’s decision
The Full Court found that the woman was entitled to the weekly payments after considering all of the complexities of the worker’s compensation laws – both new and old. One of the most difficult issues in this case was that the woman’s original injury occurred under the old laws, but by the time she had the surgery in August 2015, the new laws were in place.
As it stepped through the legislation, the Court found that:
- Any injury and incapacity for work that was attributable to surgery (which was performed with due care and skill) was part of the original injury.
- If the injury occurred after the new laws came into operation, the injury would be considered a new injury.
- If the injury was due to a trauma which occurred partially before and partially after the new laws came into effect on 1 July 2015, it also would be considered a new injury.
Because of these provisions, the Court found that the August 2015 surgery was part of the original injury, but because the trauma (as a consequence of surgery) occurred after the new laws came into effect, it must be considered to be a new injury. This meant that the new laws would apply and so the woman was entitled to receive income maintenance payments for the three-week period following her surgery in August 2015.
It’s important to understand that where a person receives income maintenance entitlements after having surgery (after 1 July 2015), those payments are only available within the two year period starting from the date of incapacity for work. Any claims for weekly payments made outside of this window won’t be within the time limit allowed by the legislation. If this situation applies to you, you would need to seek legal advice to work out whether it is worthwhile making the claim.
What does it mean?
This case was complicated because of the operation of both the old and the new laws and the transitional provisions between the two. It shows how important it is to seek legal advice as soon as possible if you are thinking about making a claim for worker’s compensation entitlements.
If your work injury occurred before 1 July 2015, the old laws and new will apply to your situation and you will need the expertise of a worker’s compensation lawyer to work out whether you have a claim.
In particular, if you have been injured and are in need of further surgery, it is essential to think about making an application for worker’s compensation immediately, while there is still a window to make a claim.
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