«Making decisions can be difficult. Decisions involving financial and legal issues are even more complicated. Minor and major brain injury caused by a ...»
The Public Trustee’s Office provides a range of brochures and information on its services.
Ph: 08 8226 9200 / 1800 673 119 (country callers).
Email: please use the enquiry form on the website.
What happens if it’s a road trauma crash is involved?
If a person is injured in a motor vehicle crash he or she may be entitled to compensation depending on who is at fault, even if the other vehicle is unregistered or its identity is unknown. This may be provided by Allianz, the Motor Accident Commission’s claims agent for South Australia’s Compulsory Third Party Insurance (CTP).
Motorists pay this insurance at the time of registration.
Compensation If a person can show that their ability to lead a normal life was significantly impaired by the injury for a period of at least seven days, or they have reasonably incurred medical expenses at a specified level (subject to CPI increases) they will be entitled to compensation for noneconomic loss.
It is recommended that legal advice be obtained regarding all aspects of the claim prior to lodgement. BINSA is able to provide a list of firms specialising in injury claims.
Once a form is lodged, Allianz will write and provide a claim reference number, and the name of the claims consultant looking after the case. Allianz will contact the claimant to discuss the case. Payments are generally made after insurance is confirmed and liability determined. There is no legal obligation upon an injured person, or an agent acting on his or her behalf, to submit a claim form to Allianz, nor is there any obligation on an injured person to discuss the crash or his or her injuries with Allianz. However, failure to do so may cause delay.
Proceedings for damages for personal injury claims involving adults should be issued within three years of the date of incident.
• Liability The CTP scheme is fault based. Hence any injured person’s claim may be reduced on account of contributory negligence or the claim may be denied.
Note: changes to the CTP legislation are being considered E:\MAC\CTP reforms\4771_ctp_reform_booklet.pdf
• Treatment Costs Among other things, reasonably incurred treatment costs, hospitalisation, ambulance, medical, chemist, physiotherapy, chiropractic and associated travel costs may be covered by CTP insurance. Treatment accounts should be sent to Allianz with the person’s third party claim reference number. If the cost item is included in the WorkCover SA fee schedule, the CTP Scheme will pay in accordance with the rate specified.
• Economic loss This includes past and future loss of earning capacity. Proof of loss of income is required.
• Non economic loss
This includes among other things, pain and suffering, disfigurement and loss of enjoyment of life. Contacts:
Allianz Australia Ph: 1300 137 331 (cost of a local call) Ground Floor, 89 Pirie Street, Adelaide SA 5000.
Page 6 of 13 BINSA Information on Legal and Finance What happens if it is a workplace injury?
Under the Workers Rehabilitation and Compensation Act 1986 workers injured at work are eligible to apply for workers compensation. A determination of the claim is made by either Employers Mutual or Gallagher Bassett, the two providers contracted by WorkCover SA to manage workers compensation claims, or by the worker’s selfinsured employer.
A worker whose claim has been accepted will have reasonable medical, hospital and rehabilitation costs paid for by Employers Mutual or Gallagher Bassett, or by the self-insured employer. In some cases the worker is also entitled to income maintenance payments based on their pre-injury average weekly earnings and potentially also a lump-sum compensation payment. Information about the eligibility criteria for this payment is available from Employers Mutual or Gallagher Bassett, the self-insured employer, or from WorkCover SA.
Employers Mutual SA SA telephone, fax and mailing details
GPO Box 2575, ADELAIDE SA 5001
DX 270 Adelaide
(08) 8127 1100 General Enquiries 1300 365 105 General Enquiries (toll free)
(08) 8127 1200 General Enquiries SA office locations
Level 15, 26 Flinders Street, Adelaide SA 5000 Ph: (08) 8127 1100
6 Kay Avenue, Berri SA 5343 Ph: (08) 8127 1121 or 0401 156 506
102 Commercial Street East, Mount Gambier SA 5290 Ph: (08) 8723 5202 or 0458 560 056
1st Floor, Office 4, 2-14 Patterson Street, Whyalla SA 5600 Ph: (08) 8645 8506
GPO Box 1772, Adelaide SA 5001 Ph: (08) 8177 8450 Toll free: 1800 664 079 Customer feedback toll free: 1800 770 813 What criteria are used to determine compensation?
The Act provides that where a worker suffers an injury arising out of or in the course of employment, the disability is compensable. To ensure that the worker does not lose their income as a consequence of the injury, they are entitled to weekly compensation payments.
Income maintenance is based on a calculation of average weekly earnings and injured workers are entitled to100 per cent of these earnings for the first 12 months of the injury, subject to a maximum of twice the state average weekly earnings. Overtime is only included in the calculation if it meets strict criteria. After 12 months, income maintenance is reduced to 80 per cent of pre-injury average weekly earnings. The level of income maintenance is also dependent on the worker’s incapacity. If the worker is only partially incapacitated they will receive weekly payments that top up their income to their pre-injury earnings from the level of income that they are earning or could earn in suitable employment.
Employers Mutual or Gallagher Bassett, or a self-insured employer will pay all reasonable medical, hospital and rehabilitation costs resulting from the disability, for example, doctor’s and physiotherapy fees, x-ray costs and travel reasonably required to obtain these services or to participate in a rehabilitation and return to work plan.
To be determined eligible for WorkCover SA entitlements, a claim form must be submitted to the injured worker’s employer. Forms are available from WorkCover SA or by phoning 13 18 55. They are also available from some employers.
What else is a worker who suffers a brain injury entitled to?
If a worker experiences a brain injury leading to an incurable loss of intellectual capacity, they are entitled to up to 100 percent of the prescribed sum for lump sum payments. A complete loss of intellectual capacity can lead to a supplementary payment. If the brain injury causes permanent disabilities to limbs or sensory faculties, for example legs, arms, smell or eyesight, the injured worker receives a percentage of the prescribed sum based on the loss.
What is not covered?
Most journeys to and from work are not covered. In some circumstance an injury arising from a journey may be compensable when there is a real and substantial connection between work and the cause of the accident.
A worker is not covered if they were involved in serious and wilful misconduct, or illegal activities or contracts that led to the injury.
The Workers Rehabilitation and Compensation Act 1986 Page 8 of 13 BINSA Information on Legal and Finance The Workers Rehabilitation and Compensation Act 1986 sets the level and criteria for workers’ rehabilitation and compensation in South Australia. WorkCover SA sets the policy and guidelines and monitors the management of claims by Employers Mutual and Gallagher Bassett.
Contacts The first point of contact for an injured worker seeking information regarding their workers compensation claim is Employers Mutual or Gallagher Bassett, or their self-insured employer. In addition, information explaining specific issues, is available from WorkCover SA. Brochures are available in various languages.
What happens if a crime is involved?
If a person is injured as a result of a Crime there may be entitlement to Victims of Crime Compensation which is paid through the Attorney-General’s Department. Other assistance may also be available.
The Victim Support Service is a non-government organisation which offers a range of services for those who have suffered criminal offence. This includes victims, their families and the community. It offers professional counselling, advocacy, support and information about victims’ rights, criminal injuries compensation and victim impact statements.
It also offers a Court Companion Service for victims and prosecution witnesses.
Ph: 08 8231 5626 Fax: 08 8231 5458 Toll Free: 1800 182 368 The counselling staff will visit people at home or see them at the Victim Support Service office at 11 Halifax Street, Adelaide, SA 5000.
The service is also available for country people through offices in Murray Bridge, Port Augusta, Port Lincoln, Port Pirie, Riverland, South East and Whyalla.
Surviving the legal process
Some useful tips about how to survive the process include:
• keep a file at home for receipts and correspondence from lawyers, doctors etc
• keep a diary
• mark a date on a calendar, once a month or once every two months, to contact your lawyer about the progress of your case
• forget about the case in between dates
• talk to other people who have gone through the process—while it is important to remember that no two cases are the same, sharing experiences may help you
• write down questions you have for your lawyer, keep a copy and ask them to write down their answers
• ask for copies of barristers’ opinions and medical reports
• many cases are settled out of court, but if your case is listed for hearing, sit in on other court cases to familiarise yourself with court proceedings
• don’t set unrealistic expectations about the amount of damages you may expect to receive
• take up meditation or yoga to learn patience!
Consumer issues Non-compensable injuries Not everyone with a brain injury will be entitled to compensation, but everyone will be concerned about paying their bills. If you have private health insurance your entitlements will depend on the extent of your cover. Check with your policy and your insurance company if you have any doubts. The public health system is free to people who need it. Your hospital and medical expenses will be paid for by Medicare.
Depending on your sources of income you may be entitled to income support from Centrelink. Check with the
Social Work Department at your hospital, or your local Centrelink office about making an application for:
• Newstart Allowance (Incapacitated)
• Sickness Allowance
• Disability Support Pension
• Carer Payment and Allowance
• Health Care Card
• Access to employment services If you have income support refused by Centrelink you may appeal the decision. The first stage of an appeal is to speak with the Centrelink Customer Service Officer who made the decision. If you are still not satisfied with the decision, you may ask for a Centrelink Authorised Review Officer to look at your situation. The Review Officer will review the case quickly and has the power to change the original decision. If your payment is refused by the Review Officer, you may appeal to the Social Security Appeals Tribunal (SSAT). The Tribunal usually sits with three members: a lawyer, a social worker and a Centrelink officer. A doctor is added to the Tribunal in cases where medical evidence is relevant. The Tribunal hearings are informal and applicants have the right to be represented by a lawyer or friend. If your claim has been denied on the basis of the Department’s medical advice, it’s a good idea to have a report from your own doctor or neuropsychologist. If you don’t feel confident about appealing on your own, the Legal Services Commission employs a solicitor who specialises in social security appeals. You can also appeal to the Administrative Appeals Tribunal (AAT) if you are not satisfied with the decision of the SSAT. You should see a lawyer about lodging an appeal with the AAT.
The Welfare Rights Centre may also be able to assist.
Dealing with health professionals - Access to information.
You have a right to information about what is happening to you so that you can make informed choices about treatment and services.
The more information you have the better you are able to make informed decisions, but it’s important to remember that health professionals may not have the answers to some questions. They may not be able to answer questions like "will I get better?" or "is my daughter going to work again?" It’s a good idea to keep a pen and paper handy to jot down questions you may have.
Page 10 of 13 BINSA Information on Legal and Finance If you are unable to write get someone else to write for you. You may want to suggest that your doctor, or another professional, writes down the answers to your questions so that you can discuss the information with your family and friends. Information is an important part of a health professional’s legal obligation to ensure you have given informed consent to treatment.
Informed consent Except in an emergency, health professionals have a legal obligation to ensure you have given informed consent
before any treatment commences. Informed consent involves legal capacity and the following:
Information—you must be told about the risks and benefits of any proposed treatment, together with any alternative treatment options.
Answers—you must be given answers to any specific questions you have.
Freedom of choice—you must not be pressured to accept the proposed treatment, you must be free to change your mind. Informed consent does not have to be in writing. You can give informed consent just by saying "yes" or by acting in a way which implies your consent (for instance, holding out your hand for medication). Informed consent must be on-going. This doesn’t mean you have to have a discussion about a particular medication each time you have a dose, but it does mean you can usually change your mind about the treatment after it has begun.