McLean Santoro Lawyers

Worker's Compensation

• New law effecting the entitlements of injured workers come into effect in South Australia on 1 July 2015. The following is a summary of the new provisions;
• The test for compensability of a physical injury - the injury arises out of or in the course of employment and the employment was a significant contributing cause of the injury.
• The test for compensability of a psychiatric injury - the injury arises out of or in the course of employment and the employment was the significant contributing cause of the injury.
• Physical and Psychiatric injuries must be assessed separately, and the assessments cannot be combined to provide an indicator of Whole Person Impairment.
• There is only one permanent impairment assessment allowed per claim, and this cannot be conducted until there is evidence that the injury is stabilised. Injuries that develop after the assessment cannot be included in the assessment of whole person impairment.
• Aggravations of existing injuries can be eligible for compensation if the employment was a significant contributing cause of the aggravation. In the case of psychiatric injuries, the employment needs to be the significant contributing cause.
• A worker who has a whole person impairment of 30% or more is 'seriously injured'. These workers are entitled to 100% of average weekly earnings for one year, and then 80% to retirement age. These workers can claim compensation for medical treatment for as long as it is 'reasonable and necessary'. Seriously injured workers can elect to sue their employer at common law. They are also able to elect to redeem their entitlements.
• Worker's who are assessed as having a whole person impairment of 30% or less (the vast majority of injured workers), will have entitlement to income maintenance compensation for 104 weeks after they are unable to work (paid at 100% of average weekly earnings for 12 months and 80% thereafter). They will also be entitled to payments for medical expenses, which will discontinue 52 weeks after income maintenance payments cease. They are entitled to compensation for non-economic loss if they suffer a WPI of between 5% and 29%. Worker's suffering a physical (non-psychiatric) injury are entitled to claim a lump sum for economic loss for a WPI between 5% and 29%.
• An employer must provide suitable employment to an injured worker within a reasonable time (one month), after which the worker may apply to the SA Employment Tribunal for an order that the employer provide such employment. The worker must have provided written notice to the employer that he/she is ready willing and able to return to work and provide information about the types of employment that he/she is capable of doing.
• Any potential claimants should seek legal advice as soon as they are aware that they may have a claim.

Family Court Property Settlement

The law regulating property division and spousal maintenance between persons who are married is contained in the Family Law Act 1975 (Cth). Both the Family Court and the Federal Circuit Court of Australia have the power to make orders for property settlement and spousal maintenance pursuant to the Family Law Act.

Property Settlement:

Matrimonial property includes anything owned by either spouse including Superannuation. The Court has broad powers to alter existing rights to property in any way that it considers just and equitable.

The Court adopts are four step process with respect to making orders regarding the division of property. The steps are as follows:

1. To identify and value all assets, liabilities and financial resources of both parties as at the date of hearing.

2. To assess the contributions that both parties have made towards the acquisition and maintenance of those assets and divide the assets accordingly. In most cases the contribution of homemaker and parent is assessed as having the same value as contributions by the primary earner.

3. To determine whether there is any further adjustment that needs to be made as a result of any disparity in the relative financial position/future needs of the parties.

4. To consider whether in the circumstances the orders to be made are just and equitable.

Where spouses agree about the division of their property it will be important to formalise their agreement to avoid claims being made by either spouse in future. Agreements can be formalised by way of a Section 90C Financial Agreement or by lodging with the Family Court an Application for Consent Orders. There are different requirements for Consent Orders and Financial Agreements however both are binding and enforceable. It is important to obtain independent legal advice prior to entering into Consent Orders or a Financial Agreement with regards to property settlement. If spouses are unable to agree it will be necessary that an application is made to either the Family Court or Federal Circuit Court of Australiafor property settlement orders. An application can be made at any time following separation or within 12 months of a divorce.

Spousal Maintenance

Under the law, a person in a marriage has a responsibility to financially support and maintain his or her spouse if the spouse is unable to adequately support himself or herself and the first mentioned party is reasonably able to do so. The Court can make orders for Spousal Maintenance on both an interim and final basis. Unless there is a need for interim maintenance, spousal maintenance claims are often resolved at the same time as a property settlement. A payment can be made in a lump sum or by periodic payments.

Property Settlement and Spousal Maintenance for separating De Facto partners

Property Settlement and spousal maintenance for de facto partners (both opposite or same sex) separating after the 1 July 2010 are covered by the Family Law Act 1975(Cth).

To be covered by the Family Law Act the following conditions must be met:

1. The relationship must have existed for a period of at least 2 years;

2. There is a child of the relationship; or

3. Serious injustice would result if an order were not made under the Family Law Act.

The same principles that apply to Married couples with regards to property division and spousal maintenance apply to De Facto partners (see above). Similarly any agreement reached between de facto partners can be formalised by way of a Financial Agreement or an Application for Consent Orders. State Law applies to separating couples that do not meet the requirements of the Family Law Act.

Insurance Contracts

• Many people who enter into insurance contracts to cover their life, or to provide for a 'living benefit' in the event of certain injuries and illnesses, find that the insurance company will do everything in its power to avoid their liabilities when payment of the benefit becomes due.
• This includes refusal to pay the benefit when evidence is obtained from the person's medical history, and reliance on obscure definitions of illness and injury contained in the terms of the policy.
• Any person who is in dispute with their insurer in relation to the payment of a benefit under a policy of insurance, should seek the advice of a lawyer.
• In South Australia, any Court action arising out of a dispute involving an insurance contract needs to be brought before the Court within 6 years.