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Merit review service notable decisions

Several hundred merit review decisions are made each year. Of these, we publish a selection of the most notable decisions that represent the different types of matters that can occur.

We do this because:

  • it helps injured people understand work capacity decisions reviews (including how they are considered and determined),
  • it helps improve the quality of decision-making and reason-writing, and
  • it displays transparency of the system.

It is also intended to help minimise disputes in the workers compensation system.

DecisionReason for publishing decisionOverview
19/18An example of an insurer miscalculating a workers PIAWE.
  • Insurer miscalculated workers PIAWE.
  • Workers PIAWE found to be $909.72 with further provisions under 6A of the Act.
  • Insurer asked to include this provision when calculating workers PIAWE.
018/18An example of an insurer asked to recalculate workers weekly payments.
  • Insurer calculated workers weekly payments as $0.00 based on having work capacity and suitable employment.
  • Worker found to have no work capacity and no suitable employment options.
  • Insure to recalculate workers weekly payments.
017/18Worker meeting special requirements to have weekly payments continue after second entitlement period.
  • Worker found to have no work capacity or suitable work options.
  • Work found to meet special requirements and entitled to continued weekly payments after second entitlement period.
016/18Worker meeting special requirements to have weekly payments continue after second entitlement period.
  • Worker found to have no work capacity or suitable work options.
  • Work found to meet special requirements and entitled to continued weekly payments after second entitlement period.
15/18An example of a worker being found to have no work capacity and no suitable employment options.
  • Insurer incorrectly stated worker has work capacity and suitable employment options.
  • Worker found to have no work capacity and no suitable employment options.
  • Worker is entitled to weekly payments.
014/18An example of a workers PIAWE being calculated and matching that of the insurers calculation.
  • Workers PIAWE calculated to be $1,134.00 per week.
  • This amount matched the amount of the insurers calculation.
  • The Authority makes no recommendations.
013/18An example of the authority not being correctly referred a work capacity decision and not able to undertake a review.
  • Worker referred letter from insurer regarding liability of injury for a work capacity review.
  • Under section 44BB a worker can only refer a work capacity decision for a work capacity decision review.
  • Authority unable to review as not a work capacity decisions.
012/18An example of a workers capacity to work being determined.
  • Worker found to not have work capacity for a period of time and entitled to weekly payments during that period.
011/18Insurer miscalculated workers weekly payments.
  • Insurer did not calculate worker's weekly payments correctly.
  • Insurer asked the recalcuate worker's weekly payments.
010/18Insurer did not calculate weekly payments using correct formula.
  • Insurer did not calculate worker's weekly payments correctly.
  • Insurer did not use correct formula to calculate weekly payments as specified under section 37.
  • Insurer to pay worker weekly payments using correct formula.
009/18An example of a worker's PIAWE being calculated.
  • Review of workers PIAWE calculation.
  • Review f PIAWE calculation found to be different to that of the insurers.
  • Insurer to pay the correct amount of PIAWE as per review.
008/18An example of a worker with no capacity for work.
  • Worker found to be able to perform restricted duties for a period of time.
  • After this period of time worker found to have no capacity to work.
  • Worker has no capacity for work.
007/18An example of a worker with no suitable work options.
  • No suitable options found for injured worker.
  • Worker's ability to earn in suitable employment is nil.
006/18An example of the Authority declining to review a work capacity decision as the worker failed to provide adequate information.
  • Section 44BB
  • Worker did not provide information requested by the reviewer.
  • Request for review declined.
005/18An example of how a worker’s earnings from a second job are taken into account in assessing the worker’s pre-injury average weekly earnings. This decision explains how Schedule 3 of the Workers Compensation Act 1987 is applied in a work capacity merit review.
  • At the time of injury, the worker had two jobs, and the worker’s total earnings were derived from a combination of the earnings from both jobs. Whilst the worker could continue to work for one employer, the worker could not continue to work for the other due to the injury. The earnings from both jobs were to be taken into account in assessing the worker’s pre-injury average weekly earnings under Schedule 3 of the Workers Compensation Act 1987.
004/18An example of assessing a worker’s ‘present inability arising from an injury’ in a decision about a worker’s current work capacity.
  • A worker’s pre-existing medical condition was exacerbated by an injury. The extent to which the pre-existing condition was exacerbated by the injury, and not all of the consequences of the pre-existing condition, formed part of the ‘present inability arising from an injury’.
003/18The Authority is able to review a decision of an Insurer about past weekly payments of compensation. This is an example of a decision reviewing a worker’s entitlement to weekly payments for weeks in a past period specified by the worker in their application for merit review.
  • The Worker was found to have current work capacity and no entitlement to weekly payments for the first part of a past period under review and no current work capacity and an entitlement to weekly payments for second part of a past period.
002/18An example of the application of the “postal rule” and the period of notice to be given before the termination of weekly benefits.
  • The Authority’s jurisdiction to determine a dispute regarding the amount of notice given by the Insurer before the termination of weekly benefits. The worker is entitled to a notice period of 3 months and 4 working days.
001/18An example of how a plan or document prepared as part of the return to work planning process is relevant in assessing suitable employment.
  • It was found the worker had “no current work capacity” as there was no suitable employment for the worker. Important factors included that the pre-injury employer was unable to provide suitable employment. A lack of plans or documents prepared as part of the return to work planning process supported that there was no suitable employment for the worker.
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