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Merit review service notable decisions

We have published notable merit review decisions.

This is to help improve understanding of issues arising in work capacity decisions and reviews, including how they are considered and determined.

It is also intended to help improve the quality of decision-making and reason-writing and to minimise disputes in the workers compensation system.

All published decisions have been anonymised with personal information related to individuals, insurers or people involved in the making of a work capacity decision removed to the extent possible.

DecisionReason for publishing decisionOverview
003/17An example of a worker with no suitable employment options.
  • Worker found to have no work capacity for current suitable employment and employment identified by an occupational rehabilitation services provider.
002/17An example of work capacity and suitable employment.
  • Workers capacity for employment changed during entitlement period.
001/17An example of a determination of a workers entitlement period.
  • Worker did not believe they were in receipt of payments for first entitlement period.
  • It was determined worker’s entitlement to weekly payments of compensation falls in the second entitlement period.
005/16An example of a workers entitlements being determined when they had multiple employers.
  • A worker had multiple employers at the time of injury and was able to continue work with one employer and not the other.
  • The workers entitlements were determined in accordance with schedule 3.

004/16

An example of the Authority determining a workers PIAWE who had a range of allowances.
  • A worker recieved a range of allowances.
  • It was determined these allowances were found to be base rate of pay exclusions.
003/16Powers of the Authority for review.
  • Application for merit review was made more than 30 days after the insurers internal review.
  • The Authority decided they did not have power to review the decision in accordance with section 44BB so the application for merit review was declined.
  • The worker took the matter to the Supreme Court who found the decision of the Authority to be correct.
002/16An example of the Authority determining a workers PIAWE.
  • Worker was in reciept of a weekly 'bonus' of $100, the characterisation of the amount was disputed.
  • It was found that the bonus amount was a base rate of pay exclusion.
001/16 An example of how the Authority determines applications for review of an insurer’s decision to dispute liability for weekly payments.
  • Section 33 and liability disputes
  • an Insurer cannot maintain a dispute about liability for weekly payments under section 33 and make a work capacity decision about the worker’s current work capacity for the same weeks of compensation
008/15This decision gives guidance on the requirement for an insurer to make back-payments of weekly compensation where PIAWE was not accurately determined.
  • Parties agreed as to the amount of the worker’s PIAWE.
  • Worker found to be entitled to weekly payments of compensation based on that amount, for the period covered by the work capacity decision (being the date of injury to internal review).
007/15An example of the Authority assessing a worker’s entitlement to compensation after 130 weeks.
  • Worker found to have current work capacity.
  • Application of special requirements for continuation of weekly payments after second entitlement period (after 130 weeks) where worker has current work capacity (section 38(3) 1987 Act).
  • Worker found not to have met special requirements for continuation of weekly payments after second entitlement period.
005/15Vocational assessment lacked sufficient information addressing section 32A requirements for suitable employment.
  • Worker found to have no current work capacity.
  • Vocational assessment information lacked information addressing worker’s ability to return to suitable employment as defined in section 32A of the 1987 Act.
  • Assessment of weekly payments under section 38 of the 1987 Act.
004/15Worker had returned to work in suitable employment. Entitlement under section 37(2) or (3) to be determined weekly based on hours worked. Current weekly earnings fluctuate.
  • Worker found to have current work capacity.
  • Worker found to be able to return to work in suitable employment. Assessment of worker’s weekly payments of compensation under section 37 of the 1987 Act.
  • Assessment of current weekly earnings where worker’s hours of employment and current weekly earnings fluctuate from week to week.
003/15Roles not suitable because worker did not have appropriate skills and work experience.
  • Worker found to have no current work capacity.
  • Application of definition suitable employment in section 32A of the WC Act 1987.
  • Suitable employment identified not suitable because worker found not to have appropriate skills and work experience to undertake roles identified.
002/15Functional requirements of roles not suited to the nature of the worker's incapacity.
  • Worker found to have no current work capacity.
  • Functional requirements of suitable employment identified not suited to the nature of the worker's incapacity.
  • Application of special requirements for continuation of weekly payments after second entitlement period (after 130 weeks) where worker has no current work capacity (section 38(2) 1987 Act).
  • Assessment of weekly payments under section 38 of the 1987 Act.
001/15Worker has no functional capacity for any employment. Applied section 38(2) special requirements.
  • Worker found to have no current work capacity.
  • Worker found to have no functional capacity for any employment.
  • Application of special requirements for continuation of weekly payments after second entitlement period (after 130 weeks) where worker has no current work capacity (section 38(2) 1987 Act).
  • Assessment of weekly payments under section 38 of the 1987 Act.
003/14This decision shows the importance of providing adequate information about a worker’s ability to earn in suitable employment.
  • Worker found to have current work capacity.
  • Application of special requirements for continuation of weekly payments after second entitlement period (after 130 weeks) where worker has current work capacity (section 38(3) 1987 Act).
  • Assessment of worker’s ability to earn in suitable employment where information before reviewer does not address elements of suitable employment as defined in section 32A of the 1987 Act.
002/14An example of procedural fairness issues that may arise in a merit review.
  • Worker found to have current work capacity.
  • Application of special requirements for continuation of weekly payments after second entitlement period (after 130 weeks) where worker has current work capacity (section 38(3) 1987 Act).
  • Worker working in a family business.
  • Weight attributed to surveillance footage.
  • Consideration of procedural fairness requirements in such circumstances.
001/14Withstood judicial review about approach to calculating worker's ability to earn in suitable employment.
  • Worker found to have current work capacity.
  • Assessment of weekly payments under section 37 of the 1987 Act.
  • Calculation of worker’s ability to earn in suitable employment where worker has returned to employment.

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 review 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 review powers in relation to work capacity decisions