Sometimes a worker or insurer can disagree about work capacity.
‘Work capacity’ is the injured worker’s capacity to work in any employment.
It is determined by a number of factors including functional, vocational and medical status, and helps to inform decisions about the ability of the worker to return to work (either in the pre-injury job, or another suitable job with the pre-injury employer, or at another place of employment).
Examples of where disagreements can happen include:
- what constitutes suitable employment for the worker
- how much the worker can earn in suitable employment
- whether the worker has current work capacity
If you disagree with a work capacity decision, you can have it reviewed. You may seek assistance from a legal practitioner regarding an application for merit review by SIRA. The insurer is liable to pay costs for advice given in connection with an application or proposed application for merit review of an original work capacity decision made by the insurer from 16 December 2016.
Legal costs will not be payable if you seek legal advice more than 30 days after you were notified of the internal review decision.
For guidance regarding work capacity assessments and decisions refer to the Guidelines for claiming workers compensation Aug 2016 (effective from 1 August 2016 for all claim activities).
For guidance regarding work capacity assessments and decisions prior to 1 August 2016 see the Guidelines for Work Capacity Decision Internal Reviews by Insurers and Merit Reviews by the Authority, Guidelines for Claiming Compensation benefits, and the Work Capacity Guidelines 2013. They were effective 11 October 2013 – 31 July 2016.
Give us a call on 13 10 50 and we can also talk you through the process that’s outlined below.
- receiving the internal review decision, or
- the due date of the internal review decision if the insurer has not notified you of its decision.
- is not lodged in time
- is not on the approved form
- is or becomes frivolous or vexatious
- if you fail to provide information that might be requested
A review of a work capacity decision may operate to stay (temporarily suspend) the work capacity decision that is under review. The insurer will explain how a stay may apply to your circumstances.
Merit review service notable decisions
Administrative law challenges to merit reviews
- all merit reviews by us are potentially subject to administrative law judicial review in the NSW Supreme Court. Of the thousands of applications for merit review finalised by us, there’s been only one Administrative Law challenge decided by the Court.
Workers Compensation Commission
- the Workers Compensation Commission (WCC) can make decisions about claim liability and weekly payments of compensation but does not have decision making powers for work capacity decisions