Wednesday, 2 February 2011

My WorkCover client's employer has not determined a lump sum for him

This question came to me via an ex-colleague of mine (another solicitor):

Q: I have an South Australian client who is has an old WorkCover sore back claim with an exempt employer. He's just found out that he may be entitled to a Section 43 lump sum, because he talked with some other mates who got some. How do you take it to the Workers' Compensation Tribunal?

In further discussions, I found that there had been no permanent impairment assessment.

First things first:
  • An 'exempt' employer under the South Australian WorkCover regime is now known as a self-insured employer. The relevant distinction is that they handle injuries and comply with WorkCover law in-house, rather than through the State scheme.
  • A 'Section 43' is a lump sum paid for permant impairment, and is based on a permanent impairment assessment performed according to WorkCover guidelines.
  • The Workers' Compensation Tribunal hears disputes regarding decisions on WorkCover claims.

A: I wouldn't take it to the Tribunal just yet. There is likely to be no dispute because there has been no decision, and there has been no decision because there is no claim. There is no claim because there is no assessment.

My first step would be to arrange for a permanent impairment assessment if your client's injuries are stable. One way to do that is with the agreement of your client's employer. Or you can help your client arrange one. Either way, the expense of the assessment should be compensable.

What happens next depends on the assessment. South Australia currently pays a Section 43 lump sum on permanent impairment assessments of greater than 5%. You would only dispute the Section 43 determination in the Tribunal if your client was unhappy with the determined lump sum, and instructed you as such.

Good luck!

Note to readers: this is not legal advice specific to your case. Do not rely on it 'as is', but undertake further independent research.

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