In the matter of an application by Anderson for approval of election [2025] SAET 134 (5 December 2025)

(1) Subject to this section, a seriously injured worker may elect to receive a lump sum payment under section 56 at any time on or after the day on which the worker is assessed and determined to be a seriously injured worker as provided by Part 2 Division 4.

**Note - **

A lump sum payment will be calculated in accordance with section 56, subject to the operation of this section.

(2) An entitlement does not arise under this section in relation to -

(a) a psychiatric injury or consequential mental harm; or

(b) noise induced hearing loss.

(3) If a seriously injured worker elects to receive a lump sum payment under section 56, the worker is not entitled (on and after the day on which the lump sum payment is made) to -

(a) recovery/return to work services for the work injury or injuries for which the election is made; or

(b) weekly payments under section 41 for -

(i) the work injury or injuries for which the election is made; or

(ii) another impairment arising from the same cause as the work injury or injuries for which the election is made.

(4) An election under this section by a seriously injured worker -

(a) must be made in a manner and form approved by the Corporation; and

(b) takes effect from -

(i) in the case of an election made by a 50% or more WPI worker - the day on which the election is approved by the Tribunal under subsection (10); or

(ii) in any other case - the day on which the election is received by the Corporation,

(5) An election under this section cannot be made by a worker who is taken to be a seriously injured worker under section 21(3) pending an assessment of permanent impairment.

(6) If a worker makes an election under this section, the worker is entitled to continue to receive weekly payments under section 41 as a seriously injured worker until the day immediately preceding the day on which the lump sum payment under section 56 in respect of the election is paid.

(7) There will be a reduction of the lump sum payable under section 56 to a seriously injured worker who makes an election under this section by the amount of any weekly payments made to the worker after the end of the period of 104 weeks from the date on which the incapacity for work first occurs, other than weekly payments made in accordance with subsection (6) after -

(a) in the case of an election made by a 50% or more WPI worker - the day on which the relevant application is referred to the Tribunal under this section; or

(b) in any other case - the day on which the election is received by the Corporation.

(8) An election under this section cannot be made unless -

(a) the worker has received competent professional advice about the consequences of making an election; and

(b) the worker has received financial advice from a qualified financial adviser about the investment or use of money to be received on the election; and

(c) the worker has received advice from a recognised health practitioner about the future progression of their injury and its likely impact on their capacity to work.

(9) An election under this section made by a 50% or more WPI worker is referred, by force of this subsection, to the Tribunal.

(10) The Tribunal may approve the making of an election by a 50% or more WPI worker for the purposes of subsection (4)(b)(i) if satisfied that the election is in the best interests of the worker.

(11) Before approving the making of an election under subsection (10), the Tribunal may take into account a report by a recognised health practitioner relating to whether or not the election is contrary to the best interests of the worker.

(12) An election by a worker under this section cannot be withdrawn on or after the election day.

(13) A seriously injured worker may only make 1 election under this section and after the worker receives the lump sum payment under section 56 to which the election relates, they are not entitled to a payment under section 56 for any other injury (whether suffered before or after the election).

(14) In addition, a seriously injured worker who has entered into an agreement for the redemption of a liability under section 53 cannot make an election under this section for the injury or injuries to which the redemption relates.

(15) The Corporation is liable to indemnify the worker for reasonable costs of obtaining the advice required under this section up to a limit prescribed by regulation.

(16) A 50% or more WPI worker is entitled, subject to any limit prescribed by the regulations, to an award against the relevant compensating authority (within the meaning of section 75(9)) for the worker's reasonable costs of proceedings before the Tribunal relating to an application for an approval under subsection (10).

(17) In this section -

50% or more WPI worker means a seriously injured worker whose degree of whole person impairment has been assessed and determined under Part 2 Division 5 for the purposes of this Act to be 50% or more.

1. Section 56A, in the context of s 55 and s 56, was construed by this Tribunal In the matter of an application by Wells for approval of election (Wells).[1] In the course of those reasons I observed that when considering an application for approval of an election, it is relevant for the Tribunal to know the net entitlement that would be received by the applicant.[2] In this case, by reference to a notional weekly earnings rate of $1,055.74, an hours worked factor of 0.631 and an age factor of 0.9, the entitlement has been calculated to be $274,972.56. I was informed by counsel for Ms Anderson that she has not received any weekly payments since the execution of the election notice and that, upon approval, Ms Anderson would receive the full entitlement.
2. The Tribunal cannot grant an approval under s 56A(10) unless it is satisfied that the pre-conditions set out in s 56A(8) have been complied with.[3] In Wells, I also noted four aspects of sub-section (10). Firstly, the Tribunal is required to be satisfied that the election is in the best interest of the worker. In the context of less definitive words or phrases having been used elsewhere, I concluded that the use of the word "is" indicates a stronger degree of satisfaction before approving an election.[4] I held that the reference to the Tribunal being required to be so satisfied indicates an objective test and the subjective view of an applicant may be rejected in an appropriate case.[5] Thirdly, I observed that there are no criteria within sub-section (10) to assist the Tribunal in determining what is in the best interests of the worker.[6] Fourthly, I noted that even where the Tribunal is satisfied that the election is in the best interests of the worker, there is still a discretion to be exercised by the Tribunal as to whether to approve the election. There is no guidance in s 56A as to what circumstances could lead the Tribunal to not approving an application where the Tribunal considers that it is in the best interests of the worker to do so.[7]
3. Having made those observations, I proceeded to set out circumstances relevant to the Tribunal's consideration of whether to grant approval:

(1) Whether the preconditions set out in s 56A(8) have been satisfied.

(2) Whether the applicant is a 50% or more WPI worker.

(3) The age of the worker.

(4) The retiring age in accordance with s 44(1) of the RTW Act.

(5) An estimate of the capitalised value of weekly payments to retiring age and likely recovery/return to work services to death.

(6) The amount of the s 56 payment that would be payable if approval is granted.

(7) The extent to which there will be a reduction in the lump sum payable under s 56 by virtue of s 56A(7).

(8) Whether the worker is likely to qualify for Centrelink benefits and, if so, the rate at which such benefits will be payable and the likely preclusion period to be imposed by Centrelink.

(9) An overview of the assets and liabilities of the worker at the time of the Tribunal's consideration of the application.

(10) How the lump sum is proposed to be utilised or invested.

(11) Whether there are any factors relevant to the worker's ability to effectively manage the lump sum payment.

(12) The extent to which the approval of the application may be in the best interests of the worker from a social and psychological perspective. Although this type of application is not brought as an adjunct to disputed proceedings, the Tribunal will have regard to the impact past litigation between the worker and the Corporation may have had upon the worker, and any risk of future litigation and further impact.

(13) The extent to which the personal circumstances of the worker may be relevant to the intended use of the lump sum payment. For example, it is not uncommon, in cases of seriously impaired workers in a marital or de facto relationship to refer to the strain that the work injury and impairment has had upon the relationship. The Tribunal may take into account the possibility of the lump sum constituting an asset of the relationship which may be the subject of distribution if the relationship were to come to an end. Another example is the existence of a relevant form of addition, such as a gambling addiction.

(14) Where the Tribunal is satisfied that the worker has the capacity to act prudently, and is apparently doing so, then the Tribunal is likely to attach substantial weight on the basis of the worker, in such circumstances, would know what is in his, or her, own interests. Even so, it remains for the Tribunal to be satisfied in accordance with the requirements of s 56A and that the discretion should be exercised to grant the approval. Prudent in this context means someone who acts with care and thought for the future, in particular, in exercising care and good judgement in relation to his or her own interests.[33]

(15) The extent to which there is an existing or a likelihood in the future of another impairment arising from the same cause as the work injury or injuries for which the election is made (s 56A(b)(ii)).

This is not intended to be an exhaustive list. Each case is to be determined by reference to its particular relevant circumstances which are evaluated, individually and then as a whole, objectively by the Court.[8]

1. The criteria identified in Wells were addressed either directly by Ms Anderson as she gave evidence before me or by her counsel. I would summarise the relevant evidence and my findings as follows:
   1. Ms Anderson is 39 years of age, having been born on 7 March 1986.
   2. Her work injuries were sustained on 23 August 2021.
   3. Notwithstanding her substantial WPI assessment, Ms Anderson has successfully returned to work on a full-time basis. Most recently, she has secured employment, on a full-time permanent basis, with a State Government department with a salary that exceeds her notional weekly earnings rate.
   4. Ms Anderson received a substantial lump sum payment for permanent impairment in accordance with s 58 of the RTW Act. She provided me with detail of how she has used the payment. A substantial amount was used to purchase a home with her partner. He has shared equally in the expense. He is employed as a truck driver and earns approximately $1,500 gross per week. A substantial portion of the lump sum previously received has been invested and I have not been concerned where Ms Anderson has used money to purchase items.
   5. Ms Anderson understands the consequences of her election being approved. Having received relevant legal, financial and medical advice she expressed, in her words, a desire to separate from the workers compensation system.
   6. Ms Anderson gave evidence of her intentions with respect to the entitlement that she will now receive if her application is approved and I am satisfied that she will be prudent in the use of that money.
   7. In her evidence, Ms Anderson addressed why she considers that it would be in her best interests if her application were to be approved by the Tribunal. She raised matters related to her financial security and independence and also her mental wellbeing. Firstly, for a few years now she has not received weekly income support payments from the Corporation and it is likely that she will continue to earn more than the notional weekly earnings rate for the foreseeable future. She will be paying the remainder of her share of the loan secured to buy her home and the balance will be paid by her partner from his earnings. Her living expenses should then be relatively modest as she has also recently purchased a new motor vehicle. Secondly, she has been receiving very little by way of medical treatment or rehabilitation and Return to Work services. Indeed, in her oral evidence to the Court, she firmly stated that an important factor in her decision to make the election is the impact upon her mental wellbeing that she has experienced when she has had to deal with the Corporation. She referred to it as the most stressful experience of her life. I accept her evidence. Finally, in considering all of the implications of her relatively young age, she also has taken into account that there may be changes to the law in the future, and there may be an adverse impact upon her entitlements to claim weekly payments and medical expenses in the future if the application were not to be approved.
   8. Ms Anderson provided, in support of her application, a professional advice certification completed by her and Ms Soukoulis, a financial advice certification completed by herself and a financial advisor, and a medical certificate completed by Dr Dion Suyapto. I have perused those certifications and I am satisfied that they meet the requirements of s 56A of the RTW Act.
   9. There is no evidence indicating a likelihood of further impairment or increased incapacity in the future.
2. Having considered all the circumstances, I find that it is in the best interests of Ms Anderson for her application to be approved and that the approval should be granted.

1. The application by Ms Jade Anderson for approval of an election pursuant to s 56A of the Return to Work Act 2014 is granted.

[1] [2022] SAET 161