Only a worker is entitled to workers compensation. Worker includes an employee in the common law sense (see Employment) and genuine independent contractors in prescribed industries (building, cleaning, transport, taxi and entertainment) who meet criteria fixed by regulation.

Labour hire workers are additionally able to make a claim under the Act. The labour hire business (business providing labour hire services to a host organisation) is ultimately the worker’s employer, and should be adequately insured for any workplace injury that a labour hire worker could incur at a host organisation.

South Australian Country Fire Services (SACFS), South Australian State Emergency Services (SASES) and marine rescue volunteers may also be entitled to workers compensation under Schedule 1 of the Return to Work Act 2014 (SA).

A worker should give notice of an injury to the employer as soon as practicable after sustaining the injury. This can be done either verbally or in writing, although an official form must be completed if requested. Failure to give notice of the injury may affect a worker's ability to maintain a claim for compensation.

A claim for compensation should be made within six months of the entitlement to the compensation arising. Delay will not be a bar to the claim if the worker was not aware of the entitlement or how to pursue it, if there were other good reasons for the delay, or if the proper investigation of the claim was not prejudiced by the delay.

Generally the claim form must be given to the employer. If the employer is registered with Return to Work SA, it must forward the claim to it within five days.

The compensating authority has broad powers to investigate the claim. This may include obtaining reports or medical notes from the injured worker’s doctors, referring the worker to an independent medical expert for examination, or engaging an investigator to interview the worker and other witnesses.

Generally, the claims agent or self-insured employer should decide whether to accept or reject the claim within 10 business days, but the time for making the determination will depend on the extent of the investigations that are required.

Application for Expedited Decision

If there is unreasonable delay in deciding the claim, the worker can lodge an Application for an Expedited Determination in the South Australian Employment Tribunal. On such an application, the Tribunal has the power to give directions to resolve the delay or to make the appropriate decision itself [Return to Work Act 2014 (SA) s 113]. Legal costs, of up to $642 for the 2023 calendar year plus preparation costs (indexed annually), may be payable by a compensating authority for an application that proceeds to a short hearing [Return to Work Regulations 2015 (SA) reg 47].

To be eligible for compensation a worker must have suffered an injury. Injury includes a physical or mental injury, a disease, disfigurement and death. Mental injury includes impairment of a mental faculty, but does not have to be a diagnosable psychiatric illness.

Generally, to be compensable, an injury must have been sustained either whilst working, or as a result of the employment.

Aggravations or recurrences of pre-existing injuries or diseases are compensable when the employment contributed to the aggravation.

Employment includes attendance at the workplace, at an educational institution for work-related education, at a place to receive medical treatment or recovery/return to work (rehabilitation) services, and journeys for work purposes [Return to Work Act 2014 (SA) s 7(5)].

Generally speaking, injuries sustained whilst travelling to and from work and home, in which no duty of employment is being undertaken, are excluded [s 7(8)]. In recognition of this many occupational superannuation schemes and the Public Service Association have taken out insurance to cover their members for such injuries.

In the case of State of SA v Roberts[2018] SASCFC 25, the worker’s injury was deemed to have occurred in the course of employment, whilst the worker was temporarily working at a rural location. This location was not the worker’s usual place of work, and the worker suffered from a disease as a result of mosquito bites whilst working at the rural location. The case established the principle that employment must be a significant (meaning important or influential) cause of injury.

A psychological injury is also described as a psychiatric or mental injury. If it involves pure mental harm without any physical injury, it will only be compensable if the employment was the significant contributing cause, and the injury was not caused wholly or predominantly by reasonable action (of various prescribed kinds) taken by the employer in a reasonable manner [Return to Work Act 2014 (SA) s 7].

The case of State of SA v Van Hattem (No. 2)[2020] SASCFC 45 settled the principle that while employment does not need to be the only significant cause of psychiatric injury, employment must be the most significant cause of the injury.

Kourakis CJ at [2] summarised the principle as follows:

“the requirement of s7(2)(b) of the Return to Work Act 2014 (SA) (the RTW Act) that ‘employment was the significant contributing cause’ necessarily requires the identification of a cause which can be described as ‘the significant cause’. Only if employment is that significant cause, is the injury compensable. A psychiatric injury may have a number of causes which would individually qualify as a ‘significant cause’ within the meaning of that expression in s7(2)(a) of the RTW Act. Nonetheless, s7(2)(b) of the RTW Act requires the identification of that one of those causes which is, relative to the others, ‘the significant cause’. Ultimately, therefore, ‘the significant contributing cause’ is the most significant of the contributing causes.”

A worker will be entitled to income maintenance if incapacitated (partially or wholly) as a result of the compensable injury, and earning less than the worker’s average weekly earnings rate.

Generally, a worker’s average weekly earnings rate will be calculated by reference to the worker’s average earnings over the 12 months before the disability [Return to Work Act 2014 (SA) s 5]. This includes lost income from a second job. A different approach may be taken if a simple arithmetical calculation does not produce a fair average due to the shortness of the period of employment.

Overtime payments will be included if there was a reasonable expectation of overtime continuing at the date of injury (a regular pattern of overtime is not required).

The average weekly earnings of a worker who is covered by an industrial award or agreement cannot be less than the rate under the award or the agreement.

Incapacity means that the worker is restricted in his or her ability to fully perform all of their work duties, as a result of the injury. Even if the worker is able to perform work duties the worker will be incapacitated for work in the legal sense if the worker’s ability to sell his or her labour on the open labour market is reduced as a result of the injury.

An injured worker, who is not a “seriously injured worker” as defined, is entitled to income maintenance for only two calendar years from the date of first entitlement to weekly payments, even if there has been a return to work and no entitlement for part of the two years [Return to Work Act 2014 (SA) ss 4(11), 39].

For the first 52 weeks the worker is entitled to 100% of the difference between his or her average weekly earnings rate and the amount earned, if any, and for the next 52 weeks 80%.

A worker who uses their accrued leave entitlements while waiting for a claim to be accepted, is entitled to have those entitlements reinstated by their employer.

The employer must pay the first two weeks of compensation.

A worker may be entitled to a further 13 weeks of weekly payments for any pre-approved surgery [ss 40, 41]. This also applies if a worker requires surgery after the income support period is ended.

A worker’s income maintenance can be reduced or discontinued only in accordance with section 48 of the Return to Work Act 2014 (SA).

This section sets out the grounds on which payments may be reduced or stopped (such as a reduction in the pattern of overtime, increasing earnings in alternate work or self-employment, fully returning to work, ceasing to be incapacitated, breaching mutuality), and the period of notice that must be given to a worker before payments are changed.

No notice is required for discontinuance at the end of the two year period of incapacity that applies to workers who have not been assessed as seriously injured.

In most cases the compensating authority must give fourteen days notice of the discontinuance of income maintenance payments, if the worker has been receiving weekly payments for up to one year, or 28 days notice in any other case.

One of the grounds on which income maintenance payments may be stopped is if the worker breaches mutuality. A worker may breach mutuality by engaging in serious and wilful misconduct, or unreasonably resigning from the job. Other circumstances in which an employee may breach mutuality are described in [Return to Work Act 2014 (SA) s 48(3)].

Any necessary medical or like expense that is reasonably incurred as a consequence of a compensable work injury should be paid by the compensating authority, whether or not the worker is still working [Return to Work Act 2014 (SA) s 33].

A worker’s entitlement to medical and like expenses ends one year after returning to work or one year after ceasing to receive weekly payments of compensation. This limit does not apply to seriously injured workers or to any therapeutic appliance required to maintain a worker’s capacity [s 33(20)]. Before losing their entitlement to medical expenses a worker can apply for pre-approval of later surgery expenses [s 33(21)].

Medical expenses includes treatment costs in hospital, doctors’ fees, pharmaceutical expenses, therapeutic appliances and the fees of allied health professionals such as psychologists, dentists, physiotherapists, chiropractors and speech pathologists. Travel costs to and from doctors’ appointments are also payable. There is a prescribed per kilometre rate for travel expenses in a private vehicle. From 1 January 2023, the prescribed rate is 51.6 cents per kilometre.

A worker can claim reimbursement after incurring expenses, or they can instead apply to a compensating authority for pre-approval before incurring the expense [s 33(17)]. A pre-approval application must be supported in writing by a treating medical practitioner. A decision must be made within one month [Return to Work Regulations 2015 (SA) reg 22].

Compensation for the cost of emergency transport is also provided [s 34]. This is fixed at $337 for the 2023 calendar year.

Treatment protocols and frameworks may be issued to exclude some medical services from being compensable, unless they are justified by the circumstances of a particular case [s 33(10)].

Other services such as gym membership or home modifications may be paid if they are approved in advance in the worker's recovery/return to work plan (see below).

An injured worker is entitled to choose his or her own medical provider.

If an injury results in a permanent physical impairment, correctly assessed as the equivalent to a 5% Whole Person Impairment or more, the worker may be entitled to two lump sum payments under sections 56 and 58 Return to Work Act 2014 (SA).

One lump sum is for non-economic loss. The second is for economic loss, based on the extent of the Whole Person Impairment.

The economic loss lump sum will now be available to a seriously injured worker (see above), from 17 October 2022, under section 56A of the Return to Work Act 2014 (SA). The economic loss lump sum is calculated to take account of the age of the worker and their full time equivalent weekly hours of work. Younger full-time workers will have proportionately greater benefits than older part-time workers.

The Return to Work Act 2015 (SA) requires determinations of permanent impairment to be made in accordance with the Guidelines, as subordinate legislation.

For assessments that occur on or after 1 August 2022, the assessment must be in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (5^th edition) and the Impairment Assessment Guidelines (1st edition) 2015, gazetted on 12 March 2015. If the Impairment Assessment Guidelines (2nd edition) 2021 applied to a worker’s injury prior to 1 August 2022, they will continue to apply for workers who selected their assessor prior to 1 August 2022.

The extent of permanent impairment must be assessed by a doctor who has been accredited to perform such assessments.

A worker must be given the opportunity to choose the assessor [paragraph 17 in both editions of the Impairment Assessment Guidelines].

Previously, only one assessment could be made of all permanent injuries arising from or attributable to the same trauma or cause. However, the former Full Court of the Supreme Court of South Australia determined in RTW Corp of SA v Preedy [2018] SASCFC 55:

Stanley J at [71] "the question of whether the worker is entitled to have those impairments assessed together or in combination to determine the degree of impairment depends either on whether the worker has suffered two work injuries arising from the same trauma,or whether the worker’s impairments are from the same injury or cause"

The Full Court of the Supreme Court in RTW Corp of SA v Summerfield[2021] SASCFC 17 applied the reasoning in RTW Corp of SA v Preedy and held that impairments from related injuries or causes are not to be disregarded in making an assessment of permanent impairment.

Instead, the causal test permits an impairment from a consequential injury to be combined with an impairment from another injury where, as a matter of common sense, the impairments are so connected that the trier of fact is satisfied that the impairments are from the “same cause" (Stanley J at [20]).

The recent amendments to the Return to Work Act 2015 (SA), that commenced on 1 August 2022, codify the principles set out in the Summerfield decision regarding the combination of impairments.

However, if a worker has already had a whole person impairment assessment under s 22, and another impairment from the same injury or cause develops or manifests itself afterwards, then that other impairment will be assessed separately, and will not be combined in any respect (whether under s 22 or sections 56 or 58) with the impairment or impairments previously assessed. A subsequent impairment may instead be combined with any other impairment from the same injury or cause that has also developed or manifested itself after the earlier assessment. [s 22(10)].

The Act outlines a practical example, below:

A worker suffers impairments arising from injuries A and B which both arise from the same cause. The worker has those impairments assessed under section 22. After the assessment of the impairments arising from injuries A and B, the worker develops further impairments from injuries C and D which arise from the same cause as injuries A and B. The worker is entitled to be assessed for the impairment arising from injuries C and D and to combine the impairments from those injuries. However, the worker cannot combine the impairments arising from injuries C and D with the impairments arising from injuries A and B under this Act.

See also the Full Court of the Court of Appeal judgment in Woolworths Group Limited v Jackermis [2023] SASCA 31.

Impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury [s 22(8)(d)].

An assessment (or parts of an assessment) may be undertaken by more than 1 accredited medical practitioner and their assessments combined to create 1 assessment [s 22(9a)].

A worker is not entitled to be assessed for permanent impairment until their injury has reached maximal medical improvement, after all medical treatment has been completed. However, an interim seriously injured assessment can be made.

No lump sum is payable for permanent psychological injuries.

These lump sum payments of compensation will not affect the worker’s entitlement to ongoing or further weekly payments of income maintenance or medical expenses unless the threshold for a seriously injured worker is reached.

As different doctors can make considerably different assessments of the same injury, specialist legal advice should be sought. Advice can also be given on choice of a suitable assessor.

A lump sum payment based on an assessment may be challenged in the Tribunal, where a second opinion can be arranged if appropriate.

The pre-injury employer is obliged to provide suitable employment for which an incapacitated worker is fit, even if the worker is only fit for reduced hours and for a different role [ Return to Work Act 2014 (SA) s 18(1)]. This obligation does not apply if the employer establishes it is not reasonably practicable to do so, or if the worker terminated their employment after becoming incapacitated.

A partially incapacitated worker now has a right to seek an order from the Tribunal that the employer re-employs them in suitable alternate duties. The worker must first make a request of the employer. If suitable employment is not provided within one month of the request, the worker has one month to apply to the Tribunal. An extension of time may be granted. The Tribunal is required to consider the reasonableness of the employer being required to provide the employment, even on a graduated basis as to hours and duties.

This right applies to workers who had an existing incapacity at 1 July 2015.

How the courts are applying section 18 of the Act is still uncertain. The cases of Puhara v RTW (Flinders Adelaide Container Terminal) [2019] SAET 3 and Walmsley v Crown Equipment Pty Ltd [2016] SAET 4 provide some commentary on how the courts may consider section 18 factors in tribunal matters.

Some legal costs are payable by the employer to a worker if the application is successful. If the application fails the worker is entitled to some costs payable by the compensating authority, subject to not acting unreasonably. Costs of up to $489 for the preparation and lodgement of an application and up to $2,993 for participation in proceedings may be awarded (for the 2023 calendar year, indexed annually) [Return to Work Regulations 2015 (SA) reg 12]. A higher rate of costs, based on 85% of the Supreme Court scale are payable in the event of an appeal.

There is an emphasis in the Return to Work Act 2014 (SA) on helping an injured worker return to work wherever possible, although it no longer uses the word rehabilitation.

The Act provides for a range of rehabilitation services, formalised in a recovery/return to work plan to assist injured workers to recover as best as possible and 'to restore the worker to the workforce and the community' [ss 23, 25].

Where an injured worker is likely to be incapacitated for work for more than 4 weeks, the compensating authority must prepare a binding recovery/return to work plan in consultation with the worker and where reasonably practicable, the worker's treating doctor. A plan may also be imposed in other circumstances.

A recovery/return to work plan may impose obligations on a worker and /or the employer.

If a worker fails to participate or cooperate in the establishment of a plan, or fails to comply with an obligation under a plan, the worker's income maintenance payments may be discontinued.

Recovery/return to work services may include fees for training and educational courses, and the provision of other equipment or services to assist a worker cope with the injury, even where those services are not focussed on returning the worker to work. This can include home help, garden maintenance, and even the costs of a special bed or chair. A worker may request specific equipment, services or training as part of a rehabilitation plan or program.

A worker may dispute decisions about the nature and scope of recovery/return to work plans by commencing proceedings in the Tribunal, as explained below [s 97].

For a seriously injured worker, see also s 56A: Election to receive lump sum payment.

In limited circumstances sections 53 and 54 of the Return to Work Act 2014 (SA) allow an injured worker to reach an agreement with the compensating authority for payment to the worker of a lump sum to finalise all ongoing and future entitlements to income maintenance and/or medical expenses. This is known as redemption.

The effect of redemption is to finalise and extinguish for all time the compensating authority's liabilities for income maintenance and/or medical expenses.

Redemption can be reached only by negotiation. The compensating authority cannot force the worker to agree to redemption and the worker cannot force the compensating authority to pay any particular amount by way of redemption. Whether there is a redemption payment, and the amount of any such payment, are matters for agreement and cannot be fixed or reviewed by a court or tribunal.

A redemption of a compensating authority’s liability for income maintenance may affect the worker’s present entitlement, or a future entitlement to income maintenance for any further work injury. Legal advice should be sought if any deduction is applied.

A redemption payment may be, at least in part, subject to taxation and appropriate financial and legal advice should be sought in that regard.

A redemption payment may result in a Centrelink preclusion period during which the worker will not be entitled to receive Centrelink payments. The length of that period will depend on the total amounts received by the worker by way of lump sum compensation and redemption. Centrelink may also be entitled to recover, from the redemption monies, benefits that it has made in the past.

Services Australia - Child Support will be informed of the settlement and may be entitled to recover any monies owing from the redemption.

If the worker lives in Housing SA accommodation, a redemption payment may affect worker’s liability for rent.

Before a redemption agreement can be completed, the worker must obtain professional advice about the effects of the redemption, financial advice regarding the investment or use of the redemption monies, and a certificate from a doctor that the extent of the worker’s incapacity for work can be determined with a reasonable degree of confidence.

The compensating authority is liable to pay prescribed fees for this professional and financial advice.

Professional advice about redemption is usually provided by a lawyer or union representative familiar with workers compensation claims. Such advice should include such matters as:

When considering whether or not to agree to redemption, legal advice should always be obtained.

Where a worker dies in the course of the worker’s employment, or because of a compensable injury, the worker's domestic partner or children may be entitled to compensation including:

This is a complicated area and legal advice should always be sought.

The worker's treating doctor should provide information regarding the condition and treatment of the worker only if authorised by the worker to do so. It would normally be in the interests of an injured worker to give an authorisation as this usually speeds up processing of the claim. If the worker incurs a fee for obtaining her or his own report from the treating doctor or a specialist, the compensating authority should pay this cost.

All clinical records of a treating health practitioner may be accessed by a compensating authority if there is a legal dispute over compensation rights in the South Australian Employment Tribunal.

The compensating authority can ask an injured worker to submit to a medical examination.

The purpose of the examination is assessment of the condition, but not treatment of it.

If the worker unreasonably refuses, income maintenance payments can be suspended until the examination takes place. The compensating authority must pay the examination cost and any costs incurred by the worker in attending.

The worker is entitled to receive from the compensating authority a copy of the medical report prepared by the medical practitioner.

Decisions made by the compensating authority in relation to a workers compensation claim, including decisions about recovery/return to work services, weekly payments, lump sum payments and medical expenses, can be challenged by a worker or employer by filing a Notice of Dispute with the South Australian Employment Tribunal. No fee is payable for lodging a Dispute.

The dispute should be commenced within one month of receiving notice of the disputed decision. Extensions of time may be possible.

The Tribunal will list the matter for a compulsory conciliation conference. At the same time the Tribunal will ask the compensating authority to reconsider the disputed decision. If the compensating authority varies the decision and the worker is not satisfied with the variation, the worker may then lodge a Notice of Dissatisfaction.

At this conference a Conciliation Officer will assist the parties to resolve or narrow the dispute by agreement.

If agreement cannot be reached, the dispute will be referred for judicial determination (trial) before a presidential member of the Tribunal. Usually at judicial determination, lay (non-expert) evidence is given by written statements and expert evidence is given in the form of written reports. Witnesses will be cross-examined (questioned) and the parties will make their arguments.

At the conclusion of the hearing the Tribunal will decide whether the compensating authority’s decision should be confirmed, varied or set aside.

The worker is entitled to be legally represented at conciliation and at judicial hearings.

Generally, where a worker seeks advice or assistance from a lawyer in relation to a workers compensation claim, the worker is not entitled to recover his or legal costs from the compensating authority.

A worker is entitled to recover legal costs from the compensating authority for work that relates to a dispute in the South Australian Employment Tribunal, whether or not the dispute is ultimately successful.

The maximum amount that a worker may recover for legal costs up to the conclusion of the conciliation stage of a dispute, is prescribed by regulation 44 of the Return to Work Regulations 2015 (SA) ($3,482 in 2023).

For work performed after the dispute is referred for judicial determination, the worker may recover legal costs to a maximum of 85% of the Supreme Court Scale.

A worker may not be able to recover legal costs if the worker acted unreasonably, frivolously or vexatiously in relation to the dispute. If the proceedings were frivolous or vexatious the worker may be ordered to pay some or all of the compensating authority, or employer’s, legal costs.

Some lawyers who specialise in workers compensation claims will represent injured workers for this fee and without charging any costs on top.

Rule 98 of the South Australian Tribunal Rules provides that a representative must not charge at a rate greater than the Supreme Court scale (including ‘no win no fee’ agreements) unless there are exceptional circumstances.

Compensating authorities actively investigate any suspected fraudulent claim. If an investigator wishes to question a claimant legal advice should first be obtained.

Where weekly payments of compensation have not yet begun, or have stopped because of a dispute between Return to Work SA and the worker, or the worker is otherwise without payments, they may apply for sickness benefit from Centrelink. If the worker later recovers weekly payments of compensation, Centrelink will recover any payments that it has made (see Pensions, Allowances and Payments).

A worker might also be able to claim income protection insurance payments. Often workers have income protection insurance through their superannuation funds.