What should I do if my workers compensation claim gets rejected in South Australia?

A rejection letter from the insurer is a decision you can challenge, not the end of your claim. In South Australia that insurer is usually one of ReturnToWorkSA’s claims agents or, if you work for a large organisation, a self-insured employer. Spiros Andrew Piliouras, a lawyer and Managing Director of WPI Lawyers, puts his advice simply:

“You should fight the rejection.”

Spiros Andrew Piliouras, WPI Lawyers

What that fight looks like depends on why the claim was rejected, what the evidence says and how quickly you act. This page walks through each of those, based on Spiros’s interview and the Return to Work Act 2014 (SA).

Why was my claim rejected, and why does the reason matter?

The rejection letter gives the insurer’s reason, and that reason decides what evidence you need to answer it. Two common grounds are that work was not a significant enough cause of the injury or, for a psychological injury, that it came from reasonable action by the employer. Spiros starts every rejected claim by reading the decision closely, because the legal test is different for physical and psychological injuries.

• Physical injuries: your employment must have been a significant contributing cause of the injury (section 7(2)(a)). Work does not have to be the only cause.
• Psychological injuries: your employment must have been the significant contributing cause (section 7(2)(b)). The Full Court of the Supreme Court has held this means the most significant of the contributing causes, so it is a harder test to meet.
• Reasonable action by the employer: a psychological injury is not covered if it arose wholly or predominantly from reasonable action taken in a reasonable manner by the employer, such as reasonable administrative action (section 7(4)). Spiros explains the question in plain terms: did the employer act reasonably or not, and is that what caused the injury?

Psychological injury claims are often rejected on that last ground. That does not settle the matter. Whether the employer’s action was in fact reasonable, and whether it was carried out in a reasonable way, are questions the Tribunal can decide differently. If your injury is one that is hard to see, our article on proving a work injury no one can see explains the evidence that tends to matter.

How long do I have to dispute the decision?

You have one month from receiving notice of the decision to apply to the South Australian Employment Tribunal (SAET) for a review (section 100). If you miss it, the Tribunal can extend the time, but only if it is satisfied there is good reason and that the other party will not be unreasonably disadvantaged by the delay.

Spiros says an extension can be sought depending on the circumstances, but his advice is not to rely on one:

“As soon as it happens, contact us.”

Spiros Andrew Piliouras, WPI Lawyers

Acting early also leaves time to gather medical evidence before the matter first comes before the Tribunal. If you are earlier in the process, our guide to the first steps after a workplace injury in South Australia covers what to do before a decision is made.

What evidence decides whether a rejection can be overturned?

In Spiros’s experience, the evidence that matters most is the medical reports, the history you gave, and the rejection letter together with the documents it relies on:

1. The medical reports. Whether your treating doctors connect the injury to your work, and how clearly.
2. The history you gave. What you told your doctors, your employer and the insurer about how the injury happened, and whether those accounts are consistent.
3. The rejection letter itself. Its reasons, and the documents it relies on. Rejection letters usually refer to medical reports or other material, and those documents are needed to assess the decision properly.

Spiros will usually obtain a further independent medical opinion as well, unless the existing reports already support the claim, because additional evidence strengthens the case. The cost of medical reports in a dispute is covered further down this page.

Not every decision is wrong. Spiros finds that most rejections he reviews involve an arguable case or a misreading of the evidence, but sometimes the insurer is right. When that happens, WPI Lawyers will tell you so.

What does a successful challenge look like in practice?

Two matters show the range of decisions that can be disputed. Every case turns on its own facts, so these are examples, not predictions.

• A rejected psychological injury claim. The insurer rejected the claim on the basis that the injury arose from reasonable administrative action by the employer. WPI Lawyers challenged whether the employer’s action was reasonable and showed that it was not. With medical evidence connecting the injury to work, the claim was accepted.
• An accepted claim paid at the wrong rate. A claim can be accepted while the average weekly earnings in the acceptance letter, which set your weekly payments, are calculated incorrectly. WPI Lawyers reviewed the calculation and disputed it, and in a recent matter the worker’s payments increased by about $200 a week.

What if the insurer stopped my payments or rejected treatment instead?

A decision to reduce or stop your weekly payments, or to refuse medical treatment, can also be reviewed by the Tribunal, within the same one-month time limit.

Weekly payments have a specific protection. If you apply for review within one month of a decision to reduce or discontinue weekly payments, and you make an election in that application, the decision is suspended. Your payments must continue, or be reinstated with back pay, until the matter first comes before a Tribunal member, and the Tribunal can extend that to avoid undue financial hardship (section 48(9)). This protection does not apply beyond 104 weeks from when your incapacity first began, unless you are a seriously injured worker.

Medical expenses work differently. Your entitlement generally ends once you have had no entitlement to weekly payments for a continuous 12 months, although there are exceptions, including for seriously injured workers and some pre-approved surgery and therapeutic appliances (section 33(20) and (21)).

Some decisions to stop payments are reasonable. Spiros gives a general example: if you return to work earning more than your average weekly earnings, ending your payments may be justified, provided those average weekly earnings were calculated correctly in the first place. That is an illustration, not advice about your situation.

Will disputing the decision cost me money?

Usually the insurer contributes to your legal costs, win or lose, although you may still have some out-of-pocket costs. Under section 106, a worker is generally entitled to an award of reasonable legal costs against the insurer for a dispute, win or lose. The Tribunal can refuse or reduce costs if a worker acts unreasonably, or frivolously or vexatiously, in bringing or running the proceedings.

There are limits to understand before you start:

• Awarded legal costs are capped at 85% of the amount allowed under the Supreme Court scale (section 106(6)), and regulations set further limits depending on the stage the dispute reaches.
• Depending on the claim and the outcome, there can be an out-of-pocket amount between what your lawyer charges and what is awarded. Ask about this before you sign a costs agreement.
• Medical reports and similar expenses, called disbursements, can usually be claimed as part of your costs, but they generally need to be paid while the matter runs.

WPI Lawyers usually charges a fixed, capped fee for disputes about physical and psychological injury claims, so you know the cost in advance. The fee may change if a dispute becomes unusually complex. WPI Lawyers also offers disbursement funding on a case-by-case basis, repaid at the end of the matter, and will tell you early if you need to fund reports yourself.

How does WPI Lawyers handle a rejected claim?

1. An initial conversation by phone or in person about what happened.
2. You send the documents by email: the decision and everything it refers to.
3. A short written summary of what WPI Lawyers believes you need to do, and whether it can take the matter on.
4. A costs agreement, signed electronically or in the office.
5. The application for review is lodged with the Tribunal. Urgent matters close to the deadline are handled case by case.

WPI Lawyers is a small practice. You deal directly with your lawyer rather than an administrator, which is why it takes on a limited number of matters and will be upfront about whether it is the right fit for yours. To find out more about how we act for injured workers, see our workplace and personal injury lawyers page, or contact us with your rejection letter.