Disclaimer: None of the information provided here is to be considered legal advice. Users of these FAQs must consult their own legal advisers before acting on any information contained in these answers.
Is the State public sector self-insured?
Yes. The legislation specifies that the State public sector is self-insured. The public sector accounts for about half of all self-insured remuneration, or 18% of the State remuneration base.
What is the benefit of self-insurance? Why do companies do it?
The primary objective of self insurance for most businesses is to improve the cost-effectiveness of their WHS and workers compensation arrangements. For example:
- Not being a part of the broader workers compensation insurance pool releases the employer from the cross-subsidies that inevitably occur in insurance pools. If an employer is a superior safety performer, its workers compensation costs will be lower. While self insurers regard best practice WHS to be far more than a simple business proposition, the self insured employer does get the immediate benefit of those lower costs. If it was still in the insurance pool, that superior performance would be offset by the poorer performance of other employers, and there would be little or no change in the levy the employer would have to pay.
- Being a self insurer allows a business to manage its own claims at the workplace. It is generally accepted that workplace-based return to work management delivers better claim outcomes in terms of the employment relationship and returns to work. This benefits both the injured employee and the employer.
What does the term 'exempt employer' mean?
‘Exempt employer’ was the term used in the Workers Rehabilitation & Compensation Act 1986 to describe self insurance until 2008, when that Act was amended to delete all references to 'exempt employer' and adopt ‘self-insured employer’ as the preferred term, as it more accurately describes the concept.
The term 'self-insured' has been continued in the Return to Work Act 2014.
'Exempt’ and ‘self-insured’ have in the past been used interchangeably when discussing self insurance in South Australia, but 'exempt' is no longer the correct statutory term.
What proportion of SA employment is covered by self-insurance?
About 38% of South Australia’s remuneration is paid by self-insured organisations.
Are self-insurers given a free hand to manage WHS and return to work as they see fit?
Not as much as is sometimes thought. Self-insurers are subject to scrutiny from a number of sources. The Board of ReturnToWorkSA has control over the granting and renewal of self-insurance, and has an elaborate financial oversight system and audit teams to monitor WHS and return to work performance. Self-insurers are also scrutinised by SafeWork SA in the same way as all other employers. They are also scrutinised by State and Federal regulators under specific industry standards and measures, environmental laws and so on. It is arguable that self-insurers are some of the most scrutinised employers in South Australia.
What is the relationship between self-insurers and unions like?
At a policy level, it is SISA’s understanding that most unions oppose self insurance. However, at the workplace level, self insurers generally report having a sound and constructive relationship with the unions and associations that represent their employees.
What is the current scaling factor for financial guarantees?
The current scaling factor is 150%.
Where can I find more detail about becoming self-insured?
Consult the Code of Conduct for Self Insured Employers on the SISA website or contact SISA on 8232 0100 or email@example.com.
How does the performance of self-insurers compare with the rest of the workers compensation scheme?
This is difficult to state with precision but data indicates that self-insurers on average:
- Have lower numbers of lost time claims
- Experience lower average lost time claim duration
- Carry a proportionally lower claims liability
- Generate better workplace health and safety outcomes
How can I find out if my employer is self-insured?
- Ask your employer's human resources, workers compensation, safety, finance or insurance manager
- Call ReturnToWorkSA on 13 18 55
What are the broad criteria for being self-insured?
The primary criteria are financial and are measures of:
- Balance sheet test (total assets/total liabilities)
- Gearing ratio (loan capital/total capital)
- Liquidity (current assets/current liabilities)
- Cash flow margin (operating cash flow/net sales)
- Profitability ratio (net profit before tax/total equity)
The actual benchmarks for these criteria vary by industry and are tabulated in section 3.5.4 of the Code of Conduct for Self-Insurers.
There are also organisational and prudential requirements (including statutory considerations) that are set out in part 3.5 of the Code of Conduct for Self-Insurers.
What industries are represented among the self-insurers in SA?
Most industries are represented with the exception of building and construction. Among the most numerous are the aged care, health and manufacturing sectors. Bear in mind also that the SA State public sector is self-insured in its entirety.
What is the fee to apply for self-insurance?
The fee is $10,000 + GST plus $15 +GST for each employee. RTW Regulation 53(2) and (3) set this fee and define exceptions from the fee.
What are the requirements for excess of loss reinsurance?
The Code of Conduct at clause 1.8 requires that a self-insured employer obtain and maintain an excess of loss insurance policy and produce evidence of its existence, to the satisfaction of ReturnToWorkSA. Such excess of loss insurance must satisfy the following:
(i) not less than $100 million on the sum insured;
(ii) a deductible of not less than $500,000 per event or series of related events; and
(iii) if the self-insured employer elects to include a stop loss excess or an aggregate excess, such stop loss or aggregate excess must not be less than the higher of:
(A) three times the individual event excess, or
(B) Ten percent above the average incurred claim cost for the three immediately prior years.
The excess of loss policy must not be contingent on the solvency of the self-insured employer, a group of self-insured employers or member of a group of self-insured employers.
What is the maximum period of a grant of self-insurance?
Section 129(2)(f) of the RTW Act sets a maximum period of 3 years for an initial grant and 5 years for subsequent grants.
How many members does SISA have?
This fluctuates as new companies join and change through mergers, de-mergers, acquisitions and so on. At any given time, SISA has 70-75 full members and about 70 associate members.
How is SISA funded?
SISA is wholly funded by member subscriptions and sponsorships. It receives no subsidies from any regulator or Government body, although it does receive event sponsorship from ReturnToWorkSA from time to time.
How long has SISA been operating?
SISA was formally incorporated on 3rd August 1984 as the Employer Managed Workers Compensation Association, although it eventually adopted the name SISA. On 1st November 2005 the association was officially re-named as SISA.
Who can join SISA?
Full membership is limited to organisations that are self insured. Associate membership is available to other organisations that are applicants or potential applicants for self insurance or providers of services to self insurers. Please refer to the ‘Joining SISA’ pages on this website for more detail.
RTW Act - Redemption
Where do I find the RTW Act equivalent of the former section 35(5) redemption provison?
That provision is now section 49(2) of the RTW Act 2014.
Can a worker apply for employment under s.18(3) after receiving a redemption?
Firstly, the receipt of a redemption is of itself unconnected with the employment relationship unless it is accompanied by other actions. The redemption provisions of the RTW Act have no requirement for any action affecting the employment relationship. Some organisations may have policies in place to require resignation or some other thing as part of redemption negotiations, but that is a workplace relations matter unconnected with the provisions of the RTW Act.
Much then depends on whether the worker resigned as part of the redemption agreement and how that resignation was documented. If the worker was dismissed for reasons other than serious and wilful misconduct then the right to apply under s.18(3) will remain open regardless of the receipt of a redemption.
This is at present an untested area of the law. It appears to SISA from the language of s.18(2) that a resignation will void the obligation to provide suitable employment into the future. However, the nature of the resignation and how it is documented gives rise to the possibility that it will be viewed by a court as constructive dismissal.
Until this area is clarified in a court, it is strongly recommended that all redemption negotiations involving termination of employment be conducted under legal advice.
Note that recent case law states that an ongoing incapacity must exist for section 18 to be enlivened at all. See Coleman-Sleep v Return to Work Corporation of South Australia (Ceduna Koonibba Aboriginal Adelaide Health Service)  SAET 144 (15 July 2021)
What is the difference between redemption of weekly benefits and an economic loss lump sum?
Probably the most important difference is that an economic loss lump sum is an entitlement, whereas redemption is at the discretion of the compensating authority.
From the worker's standpoint another important distinction is that a redemption of weekly benefits is taxable, whereas an economic loss lump sum is not. For more detail on taxation of redemption, please see FAQ Is redemption of weekly benefits taxable as income?
The other main difference is that redemption is a negotiated amount, while an economic loss lump sum is calculated in accordance with statutory tables and an assessment of whole person impairment (WPI).
Both, however, recognise in different ways the loss of a worker's ability to sell his or her labour on the open market due to a work-related impairment. So to all practical purposes, the two types of payment compensate for the same thing.
Given that an economic loss lump sum is an entitlement if the worker's WPI is 5% or more, compensating authorities are strongly advised to assess and determine a worker's economic loss lump sum entitlement before considering redemption of weekly benefits. While it is quite legal to do both, the risk of double compensation is there. It may, however, be necessary where a global claim settlement under a deed is being negotiated.
Is redemption of weekly benefits taxable as income?
Yes. Redemption of weekly benefits is taxable as income and must be taxed by the employer/compensating authority at the time of the payment. Note that workers cannot opt to take the gross amount and pay or offset the tax him or herself.
The current position of the Australian Taxation office is as follows:
- Where weekly benefit redemption is part of an Employment Termination Package (ETP), it is taxable under the complex ETP formula.
- Where weekly benefit redemption is not part of an ETP, it is taxable at the worker's marginal rate.
- Redemption of medical benefits remain as capital but not subject to Capital Gains Tax.
Working out the tax on a redemption amount can be complex if it is part of an ETP or if the addition of the gross amount to the worker's income for the year pushes the worker into a higher tax bracket.
The amount of the redemption and the tax paid must be added to the worker's normal income in such a way that it is included in the relevant year's payment summary.
We recommend that this be carried out by your payroll specialists.
For more detail and background please review the ATO Taxation Determination TD 2016/18.
Where medical and income redemption are negotiated together, what can be charged for legal advice?
SISA is aware of recent cases where legal representatives have charged the maximum fee for legal advice twice, to a total of $1,800, in cases where both medical and income redemption are being negotiated.
The RTW Act and Regulations and the general principles of billing for legal services are unclear as to the legality and ethics of this practice. It will probably take action in the SAET to resolve. In the meantime SISA would observe that:
- The prescribed rate of $900 per service is a maximum, not a fixed fee
- From that it can be inferred that the intent of the Parliament was that a solicitor would calculate the fee based on the normal method of increments of time, with the maximum set to ensure that costs are contained to a reasonable level
- At $1,800, by that method, the provision of advice on the two redemption agreements would take 6 hours at the Supreme Court rate
- That is, to us, manifestly excessive
SISA members receiving accounts for legal advice on any redemption agreement that is at the maximum rate of $900 are advised to request more detail on how long the advice took to deliver and the hourly rate used to calculate the fee. In the absence of clear evidence that the worker received 3 hours of advice per redemption, members can consider rejection of the cost claim and negotiation of a more reasonable fee.
RTW Act - Common Law
Do a worker's benefits cease when common law proceedings are issued?
No. Part 5 of the Return to Work Act 2014 specifies that in some circumstances, where the worker recovers damages, some benefits cease. SISA interprets that as meaning that the worker has to succeed in a common law claim and be paid damages before the benefits cease.
In any case, for a worker to be entitled to issue common law proceedings, he or she has to be seriously injured (30% or more whole person impaired), in which case medical benefits continue indefinitely regardless of common law.
What sort of things are covered by common law damages under the RTW Act?
Section 73(2)(c) of the RTW Act specifies that a seriously injured worker can only recover damages for future economic loss, and can only do so after formally electing to seek damages rather than redemption of weekly benefits.
If common law proceedings are issued, is it inevitable that the outcome will be decided by a court?
It is unlikely. In most jurisdictions, an overwhelming majority of common law matters are settled before court proceedings begin. Of the remainder, most will settle prior to a judgement being handed down.
The exceptions will be where there are significant sums at stake and liability and/or contributory negligence are vigorously defended.
How hard is it to establish contributory negligence?
This will vary with the circumstances of the incident giving rise to the proceedings.
The SA Civil Liability Act 1936 defines contributory negligence as a failure by a person who suffers harm to exercise reasonable care and skill for his or her own protection or for the protection of his or her own interests
With such an imprecise definition, each matter will turn on its own facts. For example, in a motor vehicle accident, a failure to wear a seat belt is clear contributory negligence where the failure caused an escalation of the injuries. Compare that to a worker who is new to a worksite who ignores a sign, lights a welder and suffers burns when a flammable material ignites. Much depends on the sign, what the worker was told about naked flames on site beforehand and the reasons why the environment was so flammable.
Have there been any common law proceedings issued since the RTW Act commenced?
To the best of our knowledge as at February 2020 there have been no proceedings issued under Part 5 of the RTW Act.
RTW Act - Financial Benefits
Do interim benefits under s.32 of the Return to Work Act 2014 cover medical benefits?
Yes. Section 32 specifies interim benefits "under this Part", meaning Part 4 of the Act, which is the part dealing with financial benefits. Part 4 includes weekly payments, medical and hospital benefits, return to work services, property damage, transportation for initial treatment and so on.
Is offering interim benefits mandatory?
Yes, if the worker's claim is undetermined at 10 business days, the worker must be offered interim benefits. It is optional to offer them before the 10 business day deadline. See section 32 of the Return to Work Act 2014.
Can I make economic adjustments to weekly benefits if a worker is not seriously injured?
In SISA's opinion, yes, you can if you choose to. What the Act says is that these workers are not entitled to economic adjustments to weekly benefits. There is, however, no bar to a compensating authority exceeding the minimum entitlement that the Act establishes.
Is it compulsory for a compensating authority to cease benefits when the RTW Act says?
No. The Act only sets a minimum level of entitlements for workers. A compensating authority could, in its sole discretion, lawfully choose to continue compensation beyond the 2 and 3 year statutory entitlement limits, even if the worker is not determined to be seriously injured. Any compensating authority considering this option would need to do so consistently and seek detailed legal advice beforehand.
What if a totally incapacitated worker on weekly payments asks to take long service leave?
Long service leave (LSL) is an entitlement that has a different status to other forms of leave in the context of workers compensation claims. While there has been no judicial clarification of this, SISA offers the following view:
LSL is an entitlement that usually accrues and is retained up to the time that the worker either takes the leave, retires or leaves the employment.
The Long Service Leave Act 1987 allows for LSL to be cashed out by agreement between the worker and the employer once 10 years' service has been completed.
While LSL cannot be taken or cashed out prior to the completion of 10 years' service, the entitlement to pro-rata cash-out on resignation or retirement arises after 7 completed years' service.
However, if a worker opts to continue to work until retirement without taking LSL, then the LSL is payable as a lump sum on retirement. In this way, the worker can obtain both the LSL lump sum and their normal pay, albeit at different times.
The same situation applies where a totally incapacitated worker on weekly benefits opts to take LSL as either paid leave or as a cash-out while still employed. Where it is taken as paid leave, it seems likely that the worker will be entitled to both the LSL and weekly income support payments. Where the LSL is taken as a lump sum, the worker is likely to still be entitled to weekly income support in the same manner as a worker who is not on compensation would be entitled to their normal wage.
While on the face of it this seems to be double-dipping, that is not actually the case. The worker has the entitlement to LSL regardless, and is only bringing that entitlement forward rather than waiting for retirement or resignation to take it. It could be argued that by bringing the LSL entitlement forward, the worker is reducing the cost of the entitlement to the employer by calculating the entitlement on the worker's earnings at the time, rather than on some higher figure in the future.
Can a notice advising a worker of cessation of services under s.33(20) be disputed?
Assuming that the worker has not been declared to be seriously injured:
- Notice must be provided ahead of the cessation setting out the date of cessation. This is the only element of a s.33(20) cessation that can be disputed, subject to the following.
- Cessation is not valid if the services fall within the scope of s.33(21)(b) and/or RTW Regulation 23.
- Where, at the time of the cessation, there are services that had already been approved but not yet used by the worker, a subsequent decision to not fund the previously approved services beyond the entitlement period cannot be disputed - see Giameos v Return to Work Corporation of South Australia  SASCFC 161 (23 December 2019).
- None of the above applies to pre-approved surgery under s.21(b)(ii) of the RTW Act.
Can a worker claim non-economic loss under the repealed Act after 1/7/15?
This is covered by subregulation 5 of the Return to Work (Transitional Arrangements) (General) Regulations 2015 (the RTWTAG Regulations).
- A worker had an accepted claim for injury to more than 1 body part under the repealed Act; and
- There had been a determination of entitlement to non-economic loss under the repealed Act that did not cover all of those injuries (for example, where one or more of the injuries had not reached maximum medical improvement prior to 1/7/15); and
- The remaining injury/ies reach maximum medical improvement after 1/7/15; and
- The worker applies to the self-insurer under subregulation 5 of the RTWTAG Regulations for the balance of the lump sum compensation prior to 1/7/16; then
the worker is entitled to a further WPI assessment under the RTW Act and payment of the balance of the lump sum compensation as calculated under Schedule 4 of the repealed 2010 Regulations.
This subregulation will expire on 1/7/16, after which there will be no further right to apply for additional lump sums under this subregulation.
This subregulation excludes any sequelae, aggravation, acceleration, exacerbation, deterioration or recurrence of an existing injury - these should be treated as new claims under the RTW Act.
RTW Act - RTW & Suitable Employment
Do I have to wait until 6 months before including new or other employment options in a RTW Plan?
No. SISA recommends that new or other employment options be considered as soon as it becomes clear that a worker will never resume all or a large proportion of his or her pre-injury work.
A worker has suitable work at the pre-injury employer - can he or she apply under s18(3)?
S.18(3) is the worker's right to apply to the pre-injury employer for suitable employment.
The wording of section 18 in its entirety does not give a clear answer to this question. If the employment already being provided is considered suitable by the SAET, then it is likely that a worker's right to seek different work under s.18(3) will not be upheld.
There is a decision affirming the power of the SAET to consider the suitability of the employment on offer - Harrington v Healthscope SA  SAET 65 (11 July 2017)
Where a case of this sort arises, the employer should immediately seek experienced legal advice.
Recent case law states that an ongoing incapacity must exist for section 18 to be enlivened. See Coleman-Sleep v Return to Work Corporation of South Australia (Ceduna Koonibba Aboriginal Adelaide Health Service)  SAET 144 (15 July 2021)
If a worker is redeemed and returns to suitable employment does the redemption affect wages?
This is untested law but our early view is that it does not. Redemption impacts future weekly compensation entitlements, but it is likely that it will not affect ordinary wages.
What is the employer's general obligation to provide suitable employment?
To date, the matters argued so far largely turn on their own facts.
In general, the SA Employment Tribunal has stated that:
- Where an application for a particular role contains so many modifications that the role becomes something quite different, it may be ruled to not be reasonably practicable for the employer to provide it - see for example Oldman v Department for Education and Child Development  SAET 225 (24 December 2018)
- In other circumstances, the onus is on the employer to prove that it is not reasonably practicable to provide suitable employment - see Walmsley v Crown Equipment Pty Ltd  SAET 4 (18 March 2016).
In the event that an application is made under s.18(3), experienced legal advice should be sought.
Evaluation & Compliance
Is it illegal to pay for a medical service at a rate higher than that fixed by the schedules?
Technically it is not. It is, however, illegal for the provider of a service to charge a worker, compensating authority or employer for a medical or other service at a rate higher than that fixed by the schedules. This rule does not apply where there is no scheduled rate for the service.
Is there any particular legal standard for determination notice content?
Not that we are aware of. It is generally accepted that in order to afford procedural fairness, a determination letter should contain:
- A plain-English description of the determination and its consequences
- The sections of the Act or regulation on which the determination is based
- A list of the evidence on which the determination is based (eg medical reports)
- The name and title of the delegated person making the determination
- The recipient's appeal rights (where appropriate), including time limits and the appropriate venue for the appeal
However, the content of notices is not itself a legislative compliance matter. Even where the manner and form of the notice is designated or prescribed, section 25 of the SA Acts Interpretation Act 1915 will allow for variations provided there is no intent to mislead.
In any case where a self-insurer's notices are questioned by RTWSA staff, they should be informed of the above. Notice content is not a valid matter for comment under the Performance Standards for Self-Insurers.
Does a self-insurer have to use the claim form designated by RTWSA?
Technially no - section 25 of the SA Acts Interpretation Act 1915 says:
Whenever forms are prescribed or approved under any Act, forms to the same effect are sufficient provided that deviations from the prescribed or approved forms are not calculated to mislead.
There is case law from the repealed Act that makes it clear that other forms of documentation, such as a letter from a legal representative or advocate or a medical report accompanied by a stated intention to make a claim, can be sufficient to initiate the claims process, notwithstanding the requirements of sections 30 and 31 of the RTW Act.
Similarly, a self-insurer would be permitted to have its own claim form with its own badging provided it falls within the ambit set by s.25 of the SA Acts Interpretation Act 1915.
Prudence and simplicity may, however, direct self-insurers to the use of the designated form.
Is it legal for a deed or other document to require a worker to waive rights under the RTW Act?
Section 191 of the RTW Act prohibits contracting out. Any contract that purports to do so is void to that extent.
The exception to this can be found in section 191(2)(a) - where the Corporation consents to the worker and employer entering into the contract. (Note that there are, as at January 2016, no circumstances prescribed under section 191(2)(b)). While section 191(2)(a) is as yet untested by self-insurers as far as we are aware, presumably such approval can be sought from the Corporation prior to a contract or deed being entered into.
Deeds of release normally function as a discharge of known, existing liabilities. Wording must be carefully set out by legal advisers in order to avoid breaches of s.191.
It is generally held in case law that a deed or consent order can only discharge liabilities for injuries that have a known impairment level at the time of discharge. If the same or further injuries generate increased impairment after the discharge, then the discharge does not cover the increased impairment. In short, a deed or consent order cannot require a worker to waive rights or entitlements they do not know they have at the time.
Is there any limit on the frequency of applications for copies of files under section 180?
Not within the RTW Act itself. However, a recent case that was referred to the State Ombudsman for an informal opinion suggests that where an application has been received within a short period (say 6 to 9 months) after a copy has been provided under a previous application and little or nothing has changed on the file, it is appropriate to simply provide copies of anything new that had not been provided under the previous application.
This is, however, formally untested as far as we know.
What limits exist on RTWSA's power to make findings of statutory non-conformance?
Section 134 of the RTW Act states in part:
(2) Delegated powers and discretions referred to in subsection (1) will not be exercised by the Corporation in relation to the workers of the self insured employer.
(3) Subject to this section, the Corporation must not overrule or interfere with a decision of a self insured employer made in the exercise of delegated powers or discretions.
(4) A decision of a self-insured employer made pursuant to a power or discretion delegated under subsection (1) will have the same force and effect as a decision of the Corporation and will be subject to review and appeal in the same way as a decision of the Corporation.
This means that RTWSA cannot make a finding of non-conformance if it simply disagrees with a self-insurer's decision (provided it was made reasonably) or some other conduct in the reasonable exercise of its delegated powers. Where disagreement between the self-insurer and the worker exists, only the SAET has jurisdiction to uphold, vary or set aside the decision. Any action by RTWSA that purports to influence a self-insurer's reasonable exercise of its delegated powers has no basis in law.
Examples of this are:
- Determination of claims
- Calculation of benefits and/or the timing of their delivery and cessation
- Content of determination notices
South Australia is unique among the Australian and New Zealand jurisdictions in having this statutory bar on the regulator intervening in self-insurer decisions. In other schemes, regulators have wide licence-based powers to intervene in decisions and to set conditions on self-insurers in areas such as claims management procedures.
Will the RTWSA WHS performance standards be aligned with AS/NZS45001?
As at February 2020, RTWSA advises that there is no plan to bring the standards into line with AS/NZS45001. Is is assessed that doing so would add no material benefit to the operation of the standards as the differences between AS/NZS45001 and AS/NZS4801 are not great.
RTW Act - General
How do I determine which workers compensation jurisdiction covers cross-border workers?
Part 2 Division 2 of the Return to Work Act 2014 sets out the law for connection with the State. ReturnToWorkSA publishes the Insurance cover for ‘cross border’ workers booklet that describes in more detail how to apply the tests.
Under what circumstances can a compensating authority recover claim costs from a 3rd party?
There are cases where an injured worker can sue a third party for damages outside the workers compensation system as well as making a claim under the RTW Act. These are usually cases where:
- An entitlement to make a claim under the compulsory third party (CTP) motor vehicles scheme arises from an accident involving a negligent driver causing injury to a worker in circumstances covered by the RTW Act;
- A labour hire worker or employee of a contractor is injured through the alleged negligence of a host employer or prime contractor.
In such cases, a compensating authority can, by the provision of an appropriate notice within the statutory period (3 years as specified by s.66(7)(g)(ii) of the RTW Act), recover past and future costs (also called 'paid and payable' costs) incurred under the RTW Act from any damages payable to the worker. This will require an accurate and formal estimate of the ultimate or final cost of the claim, as previous case law suggests that where the estimate has fallen short, the compensating authority cannot make a further recovery - see Pasminco Port Pirie Smelter Pty Ltd v Wastell  SAWCT 51 (30 June 2006).
Section 66 of the RTW Act sets this out in more detail.
Does time off under workers compensation count as service for long service leave purposes?
In the case of casual workers where weekly earnings have to be averaged for the calculation of LSL entitlements, the Long Service Leave (Calculation of Average Weekly Earnings) Amendment Bill 2015 defines compensated lost time as service for LSL calculation purposes.
RTW Act - Whole Person Impairment
What do I do with a WPI assessment that I think is technically non-compliant?
You should refer the assessment for a quality assurance review. This can be done by either referral to RTWSA or an independent WPI assessment organisation.
Where it is found that the assessment is technically faulty, it should be referred back to the assessor for rectification. Note that this should be strictly limited to correcting technical errors. The requestor should never try to persuade an assessor to alter an assessment in the absence of non-compliance. The SAET has ruled repeatedly that permanent impairment assessment is an independent process that cannot be interfered with by either party, and that only the SAET itself has the power to amend or set aside an assessment. See for example Ana Canales-Cordova v Return to Work Corporation of South Australia  SAET 8 (21 January 2020)
What do I do if a WPI assessor refuses to amend a non-compliant assessment?
The name of the assessor and the assessment, along with supporting documentation, should be provided to RTWSA, which is responsible for the accreditation of WPI assessors.
In the meantime, there is no obligation to use or pay for an assessment that does not comply with the Impairment Assessment Guidelines. You may opt to have another assessment done by a different assessor agreed with the worker.
What if an assessment is technically compliant but I think the percentage figure is unduly inflated?
This is a difficult question to answer. This situation may arise where the assessment methodology for a particular body system contains discretions for the assessor that can deliver widely disparate results between assessors. These can arise from judgments about activities of daily living, or simply which diagnostic category a particular injury falls into.
Section 22(10) of the RTW Act precludes the obtaining of another assessment where the existing one is technically compliant. There is, however, no bar on having the existing assessment reviewed by another assessor for an opinion as to whether the first assessor has appropriately exercised the diagnostic and other discretions.
Where an assessment's final result seems out of step with the revier's opinion and/or your understanding of the worker and the injury, legal advice is recommended.
Do I have to provide an assessment request to the worker before sending it to the assessor?
Yes. Appendix 1 of the Impairment Assessment Guidelines at page 119 specifies that an assessment request must be provided to the worker and at least 10 days allowed for the worker to consider the request and raise any issues before the request is sent to the assessor.
What must a self-insurer do if a worker did not have a WPI assessment under the repealed Act?
This is covered by subregulation 4 of the Return to Work (Transitional Arrangements) (General) Regulations 2015 (the RTWTAG Regulations)
In cases where workers:
- Had an assessment for a permanent impairment lump sum under the repealed Act as it stood before 1 April 2009 (in other words, under the repealed Schedule 3 to that Act); and
- Did not at any time have an assessment of whole person impairment under the repealed Act as it stood between 1 April 2009 and 30 June 2015; then
the worker has the right to request a whole person impairment assessment under this regulation.
Such an assessment is solely for the purpose of ascertaining whether the worker is seriously injured (30%+ WPI) and would not give rise to any further claim for a lump sum unless the worker's situation is captured by subregulation 5 the RTWTAG Regulations (meaning that a portion of the worker's lump sum entitlement under the repealed Act remained undischarged on 1/7/15 - see separate FAQ).
It should be noted that:
- The worker's right to request such an assessment is not time-limited - subregulation 4 of the RTWTAG Regulations has no expiry date.
- A self-insurer is not required to spontaneously offer assessments to such workers where the workers do not request one under this regulation.
- However, on request by the worker, the self-insurer must arrange the assessment as required by the Impairment Assessment Guidelines.
What if a WPI assessment is technically compliant but I think the diagnosis is wrong?
Case law states that the assessor is an 'independent arbiter' whose assessment of WPI is binding on the parties unless either the assessment is technically flawed or s.22 of the RTW Act has not otherwise been complied with - see for example Ana Canales-Cordova v Return to Work Corporation of South Australia  SAET 8 (21 January 2020)
Section 22 requires the assessor to make the assessment based on the worker's impairment as at the date of the assessment, meaning that the assessor's interpretation of the evidence provided, the diagnosis reached and the impairment precentaged derived cannot be challenged if s.22 and the Impairment Assessment Guidelines have been complied with.
Note also that the same case cited above, and others cited in that decision, make it clear that where there is no known technical non-compliance, the assessor must not be contacted unilaterally by either party for any purpose related to the interpretation of the evidence and/or the diagnosis reached. Disagreeing with the diagnosis, regardless of the grounds, is not grounds to assert technical non-compliance.
What effect do prior consent orders have on later impairment claims?
Case law states that as a general rule, workers cannot be required to waive future rights to impairment claims when the impairment is not manifest at the time the orders are made. This is so even if the injury is known at the time but does not cause any impairment until after the orders are made.
See for example Dunn v. Return To Work SA  SAET 6 (17 January 2020).
Does WPI have to be determined before a decision on interim serious injury status is made?
No. Case law states that interim serious injury status only requires a decision about the likelihood of the impairment falling close to the 30% threshold. There is no requirement to assess whether maximum medical improvement has been reached or to determine the level of impairment.
See for example Topsfield v Return to Work Corporation of South Australia  SAET 11 (30 January 2020).
What if a worker claims WPI for an injury under the repealed Act and a recent exacerbation?
The Tribunal has held that while the injury under the repealed Act is a new injury under clause 29 of Schedule 9 of the RTW Act and is subject to the RTWA, clause 43 of Schedule 9 provides that sections 55 and 56 of the RTWA do not apply to an existing injury under the repealed Act. Any intention to treat s 56 as having a partially retrospective operation is expressly excluded. Therefore the older injury does not attract a lump sum.
See Cooper v Return to Work Corporation of South Australia  SAET 13 (3 January 2020).
What is the current case law on combining WPI assessments?
There is a great deal of case law on the issue of combining WPI assessments, both for injuries arising under both the repealed Act and the RTW Act, and for multiple injuries arising under the RTW Act.
The Full Court of the Supreme Court has considered aspects of this complex issue in the following cases:
Return to Work Corporation of South Australia v Summerfield  SASCFC 17 (11 March 2021) Note that the High Court of Australia refused leave to appeal this case, futher reinforcing its precedent.
Return to Work Corporation of South Australia v Preedy  SASCFC 55 (15 June 2018)
Return to Work Corporation of South Australia v Mitchell  SASCFC 34 (11 April 2019)
Where claims are made for combined WPI assessments, legal advice should be sought due to the wide variability of the case law and the circumstances giving rise to multiple impairments.
RTW Act - Psychiatric injury claims
What is the causation standard for psychiatric injuries? Is it a higher hurdle?
Section 7(3)(b) of the RTW Act requires that employment be the significant contributing cause, as distinct from a significant contributing cause for other injuries. While often said to be a stricter test, case law so far (as at February 2020) suggests that it is in fact not appreciably different as a threshold test.
How is whole person impairment assessed for psychiatric injuries?
The SA scheme uses the Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC) as the tool for assessing psychiatric impairment. GEPIC was developed in the 1990s in response to the unreliability of the mental health chapter of successive editions of the AMA Guides for the Evaluation of Permanent Impairment. The RTWSA Impairment Assessment Guidelines direct assessors to use GEPIC in place of the the mental health chapter of AMA5.
GEPIC generates 5 classes of impairment in 6 component areas:
The classes are:
- 0%-5% WPI
- 10%-20% WPI
- 25%-50% WPI
- 55%-75% WPI
- Over 75% WPI
The assessor is then directed to use the 'median method' of fixing the final impairment figure.
Each median class includes descriptors which indicate a range of symptoms within that class. Each class has a low range, a mid range, and a high range.
The indicative ranges for each class are as follows:
Low range Mid range High range
Class One 0–1% 2–3% 4–5%
Class Two 10–12% 14–16% 18–20%
Class Three 25–30% 35–40% 45–50%
Class Four 55–60% 65–70% 70–75%
Class Five 75–80% 85–90% 95–100%
Thus the threshold for serious injury status would be at the top of the low range class 3 impairment.
Have there been any cases of serious injury status from purely psychiatric injuries?
There have been cases of 30% or more whole person impairment findings under GEPIC and/or interim serious injury status being granted on the grounds of a likely 30%+ assessment. In some cases, the Tribunal has found fault with the assessor's application of GEPIC and referred matters to an Independent Medical Advisor for re-assessment.
For relevant case law in this very complex area see:
Fulton v SA Police  SAET 210 (16 October 2019)
Smith v Central Adelaide Local Health Network  SAET 197 (24 September 2019)
Paschalis v RTWSA & McMahon Services Australia Pty Ltd  SAET 121 (19 July 2018)
White v RTWSA  SAET 91 (14 May 2018)
H v Department of Child Protection  SAET 103 (31 May 2019)
Fielden v Return to Work Corporation of South Australia  SAET 204 (21 October 2021)
RTW Act - Hearing loss claims
What's the procedure for a hearing loss that occurs in two different employers' workplaces?
Section 188 of the RTW Act sets this out. In simple terms, where a worker is found to have a hearing loss upon being employed by a self-insurer and then suffers a further loss such that the self-insurer is required to pay compensation for the entirety of the loss, the self-insurer can recover a contribution from either RTWSA (where the previous employer was a premium-payer) or the previous self-insured employer.
RTW Regulation 67 sets the audiometric procedure by which the initial loss must be established in order to exercise this right.
The reverse is also the case - RTWSA can make a similar recovery from a self-insured employer.
Such recovery action is undertaken in the SA Employment Tribunal.
What if I receive a hearing loss claim from an older worker who hasn't worked for us for years?
As at February 2020, there is an increasing trend in hearing loss claims from older workers who, in most cases, have not worked for the employer for several years. For workers past retirement age, presbycusis and other age-related conditions will usually play a role and it’s important to have that investigated before further considering the claim.
In most cases of this sort, obtaining evidence for the purposes of claim determination is difficult. Because of the presumptive nature of s.188(2) and (3) of the RTW Act and their repealed equivalents, the question of evidence is often problematic. Legal advice should be sought as this is a complex and imprecise aspect of the legislation.
It should also be noted that some retirees can access free hearing aids and related services from the Commonwealth. Case law states that where this is the case, the worker does not have an entitlement to the services under the RTW Act - see Daryl Breen v Return to Work Corporation of South Australia  SAET 208 (15 October 2019).
Are the costs of hearing aids and related services regulated?
Yes, the RTWSA Audiology Fee Schedule sets the fees that can be charged for hearing aids and related services.