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Our ref. WC001/18

Date of Review: December 2017
Our Reference: 001/18

Findings

  1. The worker had ‘no current work capacity’ from June 2016 to October 2016.
  2. The worker is entitled to weekly payments of compensation at the rate under section 37(1) of the Workers Compensation Act 1987 from June 2016 to October 2016.

Recommendations

  1. The worker’s entitlement to weekly payments of compensation from June 2016 to October 2016 must be recalculated in line with the above findings.
  2. This recommendation is binding on the Insurer and must be given effect to by the Insurer under section 44BB(3)(g) of the Workers Compensation Act 1987.

Background

  1. The worker was receiving weekly payments of compensation for incapacity for work as a result of a psychological injury. The worker was working as an IT Manager for the pre-injury employer at the time.
  2. In June 2016, the Insurer made a work capacity decision. It decided that the worker was entitled to weekly payments of compensation at the rate of $0.00 effective September 2016 on the basis that:
    • The worker had current work capacity.
    • Data information manager constituted suitable employment for them.
    • The amount that the worker was able to earn in suitable employment was $2,692.31 per week.
    • The amount of their pre-injury average weekly earnings was $2,540.00.
    • The weekly payments of compensation to which the worker was entitled was to be at the rate of $0.00 as calculated under section 37(3) of the Workers Compensation Act 1987.
  3. In June 2016, the worker returned to full-time employment with a new employer. However, the worker did not pass their probation period and this employment ended in August 2016. The worker provided medical information to the Insurer to the effect that they had no capacity to work.
  4. In October 2016, the Insurer decided to dispute liability for weekly payments of compensation on the basis that the worker’s incapacity for work did not result from the workplace injury. The worker asked the Insurer to review this decision. In July 2017, the Insurer completed its review and decided to maintain its decision.
  5. After some time, the worker referred the work capacity decision for internal review in September 2017. In October 2017, the Insurer decided that ‘as a result of an internal review decision’ the worker had current work capacity and did not have ‘any further weekly entitlements pursuant to Section 37 of the 1987 Act’. This decision was stated to ‘take effect’ from October 2017.
  6. In October 2017, the Authority received the worker’s application for merit review of the work capacity decision. The application was made within time and in the approved form.

Legislation

  1. The legislative framework for work capacity decisions and reviews is contained in the:
    • Workers Compensation Act 1987 (the 1987 Act)
    • Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)
    • Workers Compensation Regulation 2016 (the Regulation)
  2. Section 43 of the 1987 Act describes a ‘work capacity decision’. An injured worker may refer a work capacity decision for merit review by the Authority under section 44BB of the 1987 Act. The Authority is to notify the Insurer and the worker of the findings of the review and may make recommendations to the Insurer based on those findings under section 44BB(3)(e). Recommendations are binding on the Insurer and must be given effect to by the Insurer under section 44BB(3)(g).

Documents considered

  1. The documents considered for this review are the application for merit review and the Insurer’s reply form, the documents listed in and attached to those forms, and any further information provided to the Authority and exchanged between the worker and the Insurer.

Submissions

  1. The worker submits:
    • Unable to work when they received the initial work capacity decision in June 2016 stating that they had full capacity for work. Nevertheless, they attempted to work and managed to receive new employment. However, they suffered from a continuation of their symptoms, including anxiety and depression, caused by their pre-injury employment, and were unable to maintain their position. The role concluded in August 2016.
    • Their capacity was then downgraded to no capacity to work but the work capacity decision remained in force as confirmed by the outcome of internal review.
    • The medico-legal report and the treating doctor’s report state that they have a current lack of capacity and their pre-injury employment with the pre-injury employer remains the cause.
    • The initial work capacity decision was incorrect as the worker lacked capacity for any employment. Alternatively, the worker had no capacity from August 2016.
  2. In reply, the Insurer provided a chronology of the dispute and the reasons for its internal review decision. It further submits:
    • The worker’s submission that they were ‘unable to work when they received the initial work capacity decision in June 2016 stating that they had full capacity for work’ contradicts the certificates of capacity preceding the work capacity decision as well as the one issued in June 2016.
    • No further evidence has been submitted in addition to the evidence provided at the internal review stage. It therefore submits that the decision should be maintained that the worker is not able to return to their pre-injury employment but that they have an earning capacity of $2,267.20 in their pre-injury role at an alternate location. The worker’s entitlement to weekly payments of compensation under section 37 of the 1987 Act should cease.

Reasons

Nature of merit review

  1. This is a merit review of the Insurer’s work capacity decision in June 2016 to reduce the worker’s weekly payments of compensation to $0.00. I must consider the information before me afresh and make findings on the most correct and preferable decision. Any judgement or discretion exercised by the Insurer in making the decision is reviewable. For the reasons below, this merit review is confined to the period covered by the work capacity decision which is June 2016 to October 2016.

Period covered by the work capacity decision

  1. The Insurer made a work capacity decision in June 2016. In October 2016, the Insurer issued a notice to the worker under section 74 of the 1998 Act. Importantly, the notice stated:
    • Based on the information on your file (outlined below) we have decided to deny liability on your claim for weekly payments.
      This decision is effective as of October 2016 in accordance with Section 76(1)(b) of the Interpretation Act 1987.



      Based on the information that your work injury sustained with the pre-injury employer, is not the cause of your current incapacity for work, we have decided that you no longer meet the legal requirement to be entitled to weekly compensation due to the aggravation of your injury. We rely on section 4 of the 1998 Act and section 33 of the 1987 Act.

      You have not sustained a workplace injury for which compensation is payable under the workers compensation legislation: Section 4 of the 1998 Act and you are not prevented from working as a result of your workplace injury: Section 33 of the Workers Compensation Act 1987.


      The aggravation of your injury which resulted in your current incapacity for work was due to the termination of your employment with the new employer.
  2. In my view, the Insurer’s reasoning and its reliance on section 33 of the 1987 Act support that it made a decision to dispute liability for weekly payments of compensation on the basis that the worker’s incapacity for work did not result from an injury. A review of that decision was completed by the Insurer in July 2017.  The Insurer decided to ‘maintain our decision of October 2016’.
  3. A decision to dispute liability for weekly payments of compensation is not a work capacity decision: section 43(2)(a) of the 1987 Act. So, the worker’s entitlement to weekly payments of compensation during the period that liability was disputed by the Insurer is not reviewable in this merit review.
  4. In September 2017, the worker referred the Insurer’s work capacity decision of June 2016 for internal review under section 44BB(1)(a) of the 1987 Act. The Insurer completed its internal review in October 2017. The Insurer decided, among other things, that the worker had ‘current work capacity’. This decision was stated to ‘take effect as of’ October 2017. This was a ‘review decision’ as defined under section 44BA of the 1987 Act:  a work capacity decision made by an Insurer as a result of a review under section 44BB. A consequence of this review decision was to end the Insurer’s dispute about liability for weekly payments of compensation.
  5. An employer’s liability for weekly payments of compensation arises from section 9 and section 33 of the 1987 Act. For present purposes, it is only necessary to set out section 33, which states:
    • If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
  6. The term ‘current work capacity’ is defined under section 32A of the 1987 Act:
    • current work capacity,in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment
  7. It is not possible for an Insurer to decide to dispute liability for weekly payments of compensation and make a work capacity decision about a worker’s current work capacity for the same weeks of compensation. If an Insurer decides to dispute that any degree of incapacity for work results from an injury to the worker, it cannot also decide that, in the same period, the worker has a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment. The decisions are mutually exclusive—they cannot both be true at the same time.
  8. That view is fortified by the structure of Division 2 of the 1987 Act. An Insurer is required to make a decision about a worker’s current work capacity to quantify a worker’s entitlement to weekly payments of compensation in the first, second and after the second entitlement period. The sections of the 1987 Act that correspond to those entitlement periods provide the formulas for calculating the rate of weekly payments of compensation. Those sections are only engaged once the necessary elements of section 33 of the 1987 Act have been met to establish an employer’s liability for weekly payments of compensation. An Insurer only gets to the point of making a decision about a worker’s current work capacity once liability for weekly payments of compensation is established.
  9. Here, the Insurer conducted its internal review decision and specifically noted that it had earlier decided to dispute liability for weekly payments of compensation. It nonetheless decided that the worker had ‘current work capacity’ and went on to quantify their entitlement to weekly payments of compensation (albeit at $0.00).
  10. In my view, the only rational conclusion consistent with the statutory framework is that the Insurer had ended its decision to dispute liability for weekly payments of compensation when it made its review decision.
  11. The review decision is a work capacity decision. It is reviewable by the Authority under section 44BB of the 1987 Act ‘but not until the dispute has been the subject of internal review by the Insurer’. On the information before me, the review decision has not been the subject of internal review by the Insurer. So, the worker’s entitlement to weekly payments of compensation in the period after the review decision is not reviewable in this merit review.
  12. For those reasons, this merit review is confined to a review of the work capacity decision in June 2016 which covered the period from June 2016 to October 2016.

Current work capacity

  1. The Insurer’s decision to reduce the worker’s weekly payments of compensation hinged on its decision that they had current work capacity. The terms ‘current work capacity’ and ‘no current work capacity’ are defined by section 32A of the 1987 Act:
    • current work capacity,in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment

      no current work capacity
      , in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment
  2. I have considered all of the information before me. However, I have only referred to the main pieces of information for my findings on the worker’s current work capacity in the period covered by the work capacity decision.
  3. In May 2016, the treating doctor issued a certificate of capacity. The worker was diagnosed with ‘depression and anxiety from stress’. The management plan included ‘psychologist review, antidepressant. Gradual exposure therapy with CBT’. The worker was certified with capacity for some type of employment for eight hours a day, five days a week with a note that ‘every 1 w increase by 2 hours’. I understand ‘1 w’ to mean one week. The worker’s capacity in other areas was certified ‘ok’ on the following conditions:
    • As long as they do not work in the same department unit where they worked before. They can work in different department. With gradual exposure. New job search and assessment. With some on-going support.
  4. It is important that the worker’s capacity for employment was qualified by quite restrictive conditions. The conditions that ‘every 1 w increase by 2 hours’ and that the worker can work in a ‘different department’ ‘With gradual exposure’ as well as ‘With some on-going support’ all support that a planned, supported and gradual return to employment was required.
  5. I do not consider that the words ‘They can work in a different department’ meant to restrict the worker to only having capacity to work with the pre-injury employer. The plain meaning of that phrase is to simply state what the worker ‘can’ do. In the context in which it appears, I consider that those words only clarify that the worker can continue to work at the pre-injury employer so long as they are separated from the workplace environment that they were in when the worker had the injury. It does not exclude the possibility of other employment. I think that view is favoured by the reference to ‘New job search and assessment’. While that phrase is ambiguous, I think it likely indicated that the worker had capacity to return to employment outside the pre-injury employer. Although, any such employment needed to be consistent with the other conditions stated on the certificate of capacity for a planned, graduated and supported return to employment.
  6. In June 2016, the worker wrote to the Insurer. The worker stated:
    • In January 2016, although I felt I do not yet have any current capacity to return to work, in the spirit of increasing the chance of doing ‘suitable duty’ (as long as I do not work in the same department unit I was in) within the pre-injury employer, I agreed to 4 hours per day for 3 days a week at the case conference held that day.
    • In February 2016, I was informed by the occupational rehabilitation provider that the business unit, the parent unit to the unit I work in, was not able to find me ‘suitable duty’. This was despite the occupational rehabilitation provider attempting since January 2016 to arrange a meeting for RTW discussion.  …
    • Around March 2016, the occupational rehabilitation provider and the Insurer informed me that the pre-injury employer has contacted them to inform no suitable duties have been found across the whole organisation. I was advised the next steps to take would be progressing to start doing a ‘job seek’ outside of the pre-injury employer.

      ...


      I have up to this point worked hard to recover from the injury and, in faith, have agreed to the potential work capacity stated in the certificates. That was in order to maximise my chance of getting a job, either independently on my own or dependently through the occupational rehabilitation provider and its partners. To date, I have not been put in contact with any of the occupational rehabilitation provider’s work placement partners.
  7. In my view, this information is consistent with the other information available. The pre-injury employer was not able to provide suitable employment for the worker and they were in fact referred to the occupational rehabilitation provider for job-seek assistance. The return to work goal in the occupational rehabilitation provider reports before me was ‘different employer, different duties’ or ‘different job, different employer’.
  8. In June 2016, the treating doctor issued another certificate of capacity. The management plan was stated to be ‘psychologist review, antidepressant. Gradual exposure therapy with CBT. New job – gradual help from psychologist’. The worker was certified with capacity to work from June 2016 to July 2016 for eight hours a day, five days a week ‘every 1 w increase by 2 hours’. Their capacity in other respects was stated to be ‘ok’ subject to the same conditions as before.
  9. In July 2016, the occupational rehabilitation provider, produced a return to work plan. It noted that ‘The worker is working in a fulltime role with a new employer, commenced on June 2016’. It also noted that ‘The worker reported that they had some doubt about their ability to work in the role in a fulltime capacity, however they were motivated to “put their best foot forward”’.
  10. In August 2016, the occupational rehabilitation provider produced a closure report. It stated that the ‘medical status at closure’ was:
    • According to the Certificate of Capacity completed by the treating doctor dated June 2016, the worker currently has capacity for eight hours per day, five days per week. The treating doctor recommended that the worker not return to work in the same department unit, however the worker could work in a different department with the pre-injury employer.

      The worker continued to engage in Psychological treatment with the counsellor for post-placement support and adjustment to a new role.

      The worker advised they continued to take medication to assist with increased anxiety associated with commencing a new role and working fulltime hours. The worker continued to take prescribed medication to assist their mood.


      The worker noted that they continued to experience an increase in their symptoms of anxiety with commencing the new role with the new employer. Additionally, the worker advised that their anxiety had increased with regards to the feedback they received from the background check performed by the employer, which identified an area of concern. The worker stated that they believe that the pre-injury employer has disclosed their workplace injury, jeopardising their current role.
  11. In September 2016, the worker wrote to the Insurer to request further psychological counselling treatment. The worker stated: 
    • It has been four weeks since the new employer terminated my employment. I have not been feeling too good, and have been experiencing increasing panic attacks, anxiety and depression, of the kind I had had. It is affecting me seriously at present, as I currently do not have the capacity to work, or seek work.


      I understand I do not have, or ever had true, total 100% capacity to work. I have stated this in my response, dated June 2016, to your letter, “Notice of work capacity decision to terminate weekly payments[”], dated May 2016.
  12. In September 2016, the treating doctor issued a certificate of capacity. The worker was certified with no current work capacity for any employment during September 2016 and then capacity for some type of employment during October 2016 for four hours a day, two days a week. Their capacity in other areas remained ‘ok’ and subject to the same conditions as before. In Part C of the certificate, the worker handwrote that they were employed by a new employer from June 2016 to August 2016. The worker stated that their ‘level of anxiety and stress was very high from Day 1 with the new employer. This culminated in the new employer serving notice of immediate termination, within the 3-month probation period…’.
  13. In September 2016, the treating doctor issued another certificate of capacity. The worker was certified with no work capacity from September 2016 to October 2016 and then capacity to work four hours a day, two days a week in later October 2016. The worker’s capacity in other areas remained ‘ok’ subject to the same conditions as before.
  14. In September 2016, the worker wrote to the Insurer. The worker reiterated that they agreed to various increases in their certified work capacity ‘in the spirit of increasing my chance of getting full-time work’ not because they truly thought they had that level of work capacity. The worker also disputed certain information contained in reports from an injury treatment provider about their self-reported abilities.
  15. In October 2016, a registered psychologist for the injury treatment provider produced an initial assessment report. They stated that ‘It is the opinion of the psychologist that the worker would be fit to return to their pre-injury duties following 12 sessions of psychological treatment’. They did not give an opinion on the worker’s work capacity at the time of their assessment.
  16. In October 2016, the treating doctor issued another certificate of capacity. The worker was certified with no work capacity from October 2016 to November 2016. The box next to ‘capacity for some type of employment’ was also marked but no date range was provided to indicate the period to which that applied. The worker was again indicated to have ‘ok’ functional capacity in physical activities such as lifting, carrying, sitting, standing and the other areas, subject to the same conditions as before.
  17. In October 2016, the psychologist produced an initial NTD case conference report. The psychologist stated that ‘The treating doctor advised that although the worker cannot work right now, this should be reviewed again in 3 weeks and they are happy to do this’. Further ‘The treating doctor advised they will change the certificate to unfit for work for 3 weeks. The psychologist advised there is no need to change it as this would indicate the worker’s condition has decline[d]- rather, it would be best to leave the hours unchanged at 4 hours 2 days to allow flexibility with vocational services’. In my view, this explains why both boxes were marked on the certificate of capacity and why no date range was provided to indicate that period that the worker had capacity for some type of employment. It is evident to me that the treating doctor’s opinion was that the worker had no current work capacity pending a review in three weeks.
  18. In October 2016, another psychologist for the injury treatment provider produced a progress report, which stated:
    • Based on the observed and self reported abilities that have been demonstrated throughout the program, it is the opinion of the treating Psychologist that the worker has the capacity to engage in suitable employment for 4 hours per day, 2 days per week.

      ... 

      The worker will continue with weekly sessions which will focus on treatment techniques to address psychological symptoms.


      It is the opinion of the treating psychologist that the worker is fit for suitable duties in an optimised environment for 4 hours 2 days per week.
  19. In November 2016, the initial psychologist produced a progress report, which stated: 
    • Based on the observed and self reported abilities that have been demonstrated throughout the program, it is the opinion of the psychologist that the worker has the capacity to engage in employment for 4 hours, 2 days per week.




      It is the opinion of the psychologist that the worker is fit for some type of work for 4 hours 2 days per week in an optimised environment.
  20. In my view, these opinions are generally consistent with the certificates of capacity. It supports the view that the worker was only realistically able to return to employment on a small number of hours at first and gradually increase them. Further, the reference to an ‘optimised environment’, in my view, echoes the conditions stipulated on the certificates of capacity which support that the worker requires a planned, gradual and supported return to employment.
  21. In November 2016, the worker prepared a signed statement. Relevantly, the worker stated that:
    • The treating doctor produced a Certificate of Capacity in January 2016, stating I am fit for some type of employment up to four hours a day, three days a week. A return to work condition was included “as long as the worker does not work in the same department unit where they worked before. The worker can work in a different department”.
    • For the next two months the RTW co-ordinator was unsuccessful in arranging a return to work meeting with the pre-injury employer. There were a number of exchanges between the RTW co-ordinator, case manager and pre-injury employer’s incident manager.
    • In March 2016, the case manager advised me that the pre-injury employer had contacted them and advised they were unable to offer me any suitable duties in any other department business units.
    • A return to work consultant was then appointed after March 2016 to help me with job seeking outside of the pre-injury employer. The consultant subsequently was unable to find me a job opportunity through their channels.

    • I don’t think I had the proper work capacity to return to employment when I started working for the new employer.
    • I only went back to work because the Insurer and the support people kept pressuring me to find employment and to return to work.
    • Personally, I thought that returning to work would assist me in recovering from my psychological injury.
    • I feel I was not able to perform my employment duties properly with the new employer due to my psychological injury which I suffered at the pre-injury employer.
  22. In my view, this version of events is supported by the other information before me and I accept it.
  23. In November 2017, the medical practice produced a patient health summary for the worker. It provides a history of the worker’s consultations with the treating doctor from May 2016 to November 2017. This covers parts of the period covered by the Insurer’s work capacity decision. The entries are brief but given the overall impression that the worker has consistently had symptoms of anxiety and depression that impact on their ability to function.
  24. The medical evidence before me supports that the worker has a present inability arising from an injury such that they are not able to return to their pre-injury employment. The certificates of capacity specifically state that the worker is not to work in the ‘same department unit’ that they were in when injured.  Further, the medical information generally supports that the worker is not able to return to full-time employment as they were in prior to their injury but rather to start on a small number of hours and gradually increase them.
  25. The issue is then if the worker is able to return to work in ‘suitable employment’ as defined in section 32A of the 1987 Act as:
    • Suitable employment, in relation to a worker, meansemployment in work for which the worker is currently suited:
      1. having regard to:
        1. the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
        2. the worker’s age, education, skills and work experience, and
        3. any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
        4. any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
        5. such other matters as the Workers Compensation Guidelines may specify, and (b) regardless of:
          1. whether the work or the employment is available, and
          2. whether the work or the employment is of a type or nature that is generally available in the employment market, and
          3. the nature of the worker’s pre-injury employment, and (iv) the worker’s place of residence.
  26. I acknowledge the Insurer’s submission that the worker’s statement that the worker was not able to work at the time of the work capacity decision is inconsistent with the certificates of capacity. It is true that the certificates of capacity at the time of the work capacity decision supported that the worker had capacity to work. However, the legislation requires an assessment of whether the worker is able to return to work in suitable employment. ‘Suitable employment’ means employment in work for which the worker is currently suited having regard to certain factors.
  27. A factor that must be had regard to is the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker. For the reasons given earlier, the details in the medical information support that while the worker had capacity to work, it was on the condition that it would be part of a planned, gradual and supported return to employment.
  28. The information before me does not support that there was such employment in work for which the worker was currently suited. The worker’s pre-injury employer was unable to provide such suitable employment. It is significant that the pre-injury employer was a large organisation and had statutory obligations to participate and co-operate in establishing an injury management plan for the worker under Chapter 3 of the 1998 Act to help facilitate their return to work. In my view, the fact that it was unable to provide the worker with suitable employment highlights how challenging that task is given the nature of the worker’s incapacity and the need for an ‘optimised environment’ as the psychologists put it.
  29. That view has added weight given the actual experience of the worker’s return to work in fulltime employment with a new employer. The worker was able to secure fulltime employment with a new employer in a competitive selection process. However, the evidence before me from the worker, which I accept, is that they were not suited to this employment because they were not able to cope with its day-to-day demands given the continuing effects of their injury. In fact, this employment ended after about three months.
  30. Indeed, the medical information before me supports that the worker’s capacity for employment only deteriorated at this point. The certificates of capacity began to certify him as having no current work capacity. Further, the psychologists considered that the worker had capacity for only four hours a day, two days a week.
  31. Given the nature of the worker’s incapacity the return to work planning process and the occupational rehabilitation services provided to the worker are particularly important. However, the plans and documents prepared as part of the return to work planning process and the occupational rehabilitation services provided to the worker do not add weight to the view that there was planned, gradual and supported employment consistent with the conditions stated in the certificates of capacity and other information before me that the worker was able to return to work in.
  32. The documents prepared by the occupational rehabilitation provider refer to broad goals such as ‘different employer, different duties’. However, there is no sufficiently detailed plan or explanation provided by reference to actual employment to support that there is employment with suitable conditions for the worker to return to work in given the nature of their incapacity.
  33. A consultant from the occupational rehabilitation provider produced a vocational assessment report dated May 2016. The consultant assessed that the worker was able to return to work as a data manager, enterprise architect or data information manager. However, the consultant’s report including the labour market analysis section did not meaningfully address the nature of the worker’s incapacity. There was an inadequate explanation of how the employment in question would be able to provide the progressive increase in hours of work after starting on a small number of hours, the gradual exposure to duties, and ongoing support as referred to in the certificates of capacity. I acknowledge that the consultant stated that the treating doctor and the treating psychologist ‘approved’ the identified employment options. However, I prefer the details provided in the medical information before me, including the certificates of capacity, to assess the worker’s ability to return to work in suitable employment.
  34. The occupational rehabilitation services provided to the worker have been of a general nature. They have mainly involved case conferencing with treating medical practitioners and job-seeking assistance. The provision of these services does not add weight to the view that the worker is able to return to work in suitable employment given the nature of their incapacity.
  35. In my view, the information before me supports that during the period covered by the Insurer’s work capacity decision, the worker’s capacity to work fluctuated between having some capacity to work and having no capacity to work in line with the certificates of capacity before me. However, even when the worker had a certified capacity to work, I am not persuaded on the information before me, given the conditions placed upon their work capacity, that the worker was able to return to work in ‘suitable employment’ as defined by section 32A of the 1987 Act.
  36. I find that during the period covered by the Insurer’s work capacity decision, the worker had ‘no current work capacity’ as defined by section 32A of the 1987 Act.

Calculation of entitlement

  1. It is common ground that during the period covered by the Insurer’s work capacity decision, the worker was in the ‘second entitlement period’ as defined by section 32A of the 1987 Act. As the worker had no current work capacity during that period, they are entitled to weekly payments of compensation at the rate under section 37(1) of the 1987 Act:
    • The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:  
    1. (AWE × 80%) − D, or 
    2. MAX − D,


      whichever is the lesser.
  2. The Insurer must recalculate the worker’s weekly payments of compensation accordingly from June 2016 to October 2016.  

Merit Reviewer
Merit Review Service

Delegate of the State Insurance Regulatory Authority