Are you a committed career girl? Or maybe you just need a job to pay the bills. Whatever your reason for working, there are a couple of fundamentals that you’re entitled to expect. One is that your workplace is safe. Another is that you can do your job free of bullying, harassment and discrimination.
But if you’re injured at work, your legal situation may not be so clear-cut. Dealing with a workplace injury can be stressful and confusing, especially if you’ve never been in that situation before. So if you’re injured at work, can you take legal action?
The short answer is yes, usually in the form of a workers compensation claim.
Workers compensation: the basics
To make a workers compensation claim, there are four basic criteria that must be met:
1. You must have suffered an injury.
2. You must have been injured at work or as a result of your work.
3. You must be considered a worker under the law.
4. You must have suffered a loss, for example loss of income or you have incurred medical expenses.
Injuries can include physical or mental injuries, disease, disfigurement or even death.
A “worker” may include an employee, contractor or even a volunteer. But this can be a very complex issue and legal advice should be sought to work this out.
“At work” means that at the time of injury, the worker must have been at the work site or doing something connected with their work. For example, they may have been driving from the worksite to visit a client.
“As a result of work” means that the worker has been injured because of their job. For example, sexual harassment in the workplace causing a psychiatric injury.
How to claim
If you’ve been injured at work and want to make a workers compensation claim, you need to tell your employer about the injury as soon as possible. You should also go to your doctor so that your injury can be treated and assessed. Your doctor will need to provide you with a Work Capacity Certificate.
You will also need to fill out a claim form to go with the Certificate. Give this to your employer or send it to Return to Work SA (RTWSA).
What happens next
Once you’ve made your claim, RTWSA will investigate and decide what to do. It may send you to other doctors or specialists or it may interview any witnesses to your injury to get a better understanding of what happened.
RTWSA may approve interim (temporary) payments until it can finally decide whether to accept the claim.
If a claim is accepted, the type of payment you receive will depend on the nature and extent of your injuries. Payments can include:
- Income maintenance (payments that maintain your income at the same level as it was before the injury).
- Medical expenses (which can be approved for surgery, medications, doctors and other medical services).
- Lump sum compensation (for permanent impairment due to serious injury once the injury is stable).
Even while the claim is being assessed, and if you have some capacity to work, the employer must provide suitable work duties (these may have to be modified, depending on the injury). You must be ready, willing and able to perform the duties. This is known as “mutuality.”
If your claim is rejected, you may need to take legal action to have your claim decided by the South Australian Employment Tribunal (Tribunal). A good workers compensation lawyer can help you decide whether to take legal action.
If RTWSA takes too long to make a decision about your claim, you can make an application to the Tribunal to compel it to make a decision.
It is worth remembering that the workers compensation process is complicated. The best way to proceed is to get legal advice right from the beginning. If your claim isn’t accepted by RTWSA, the way that your claim has been handled may make all the difference to whether you are successful in challenging that decision.
Other legal options
Workers compensation may not be the only option available for a workplace injury. You may need to think about suing for personal injury. For example, if you have a car accident whilst on the way to visit a client, you may decide to sue the driver of the other car and to make a claim for workers compensation. But if you are successful in both actions, workers compensation law will require you to keep just one of the benefits and to repay the other.
But this doesn’t apply to human rights issues. For example, if you have suffered an injury (for example, a psychological injury) due to harassment or discrimination, you may be able to claim workers compensation and to make a claim in the Human Rights Commission. You may be able to recover some of your legal costs when claiming in both areas, so you should always speak to a lawyer before making a claim.
When it comes to deciding which legal option avenue to use, or whether you should use more than one, it is crucial to get advice from a workers compensation lawyer who also practises in these other legal areas.
Websters Lawyers have a team of workers compensation specialists who also practice in other areas. They provide outstanding client service and with a free first interview, you have nothing to lose and everything to gain.
This article provides general information only. For advice specific to your needs, you should consult a lawyer.
