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Work capacity decision reviews

If you disagree with your insurer's work capacity decision about your ability to work or your entitlement to weekly payments after a work related injury or illness, we can help you resolve this dispute.

First, you need to make sure you have asked the insurer to carry out an internal review of their decision. If you still disagree with the insurer after the internal review, you can apply to our workers compensation merit review service (MRS) for a merit review of the decision.

We have created an easy-to-use online portal where you can submit an application (and supporting documents) to have the decision reviewed by us, and follow its progress to completion.

This is called lodging an application for 'merit review'. All you have to do is click on one of the two buttons below. You can still submit a paper application form if you prefer.

Before using the portal there are some things you need to know:

1. What is 'work capacity'?

‘Work capacity’ is a legislative term.

In general terms a work capacity decision is a decision by an insurer about whether you can work, for how long and at what type of work, which has an impact on the types of entitlement you can receive.

Can you return to work right now? If yes then for how many hours a week can you work and what sort of tasks can you do?

Click here for some examples of disputes

  • you disagree with the insurer on your ability to return to work
  • you disagree with the ‘suitable work’ (work you can do while you're recovering) the insurer has recommended for you
  • disagreement on how much you can earn in suitable employment
  • disagreement on your pre-injury average weekly earnings (PIAWE) or current weekly earnings, or
  • any other decision that impacts your entitlement to weekly payments of compensation

2. Before you can request a merit review, you must first request an internal review by the insurer

An internal review is a review of the work capacity decision by the insurer. It is conducted by someone other than the person who made the initial decision.

The review will consider the information used in the initial decision, as well as any further information you provide in support of your internal review application.

Fill out the application for internal review by insurer form to begin the process.

The insurer will contact you within seven days of receiving the application and explain the internal review procedure.

The insurer is required to complete the internal review and notify you of the outcome within 30 days from the date of your application.

On completion of the review, you will receive written notification from the insurer detailing the outcome.

If you are unhappy with the outcome of the insurer's internal review then you can have the work capacity decision reviewed by us.

Further information

What about legal costs?

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.

Conducting merit reviews

An independent decision maker from the SIRA Merit Review Service will conduct a merit review of the insurer’s work capacity decision and will outline findings and recommendations. These are binding on the insurer.

They will send the details of the findings and recommendations (with their reasons) to you and the insurer as soon as possible, and preferably within 30 days of the merit review being lodged.

The guidelines for claiming workers compensation and the guide to workers compensation merit reviews has detailed information about the processes for merit reviews.

Contact WIRO

After you are informed of the findings from the SIRA reviewer, you can seek a procedural review of the insurer's work capacity decision by applying to the Workers Compensation Independent review officer  (WIRO).

You can do this by phoning the WIRO on 13 94 76.

The 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

Stay of a work capacity decision

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 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 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 all personal information related to any individuals, insurers or identities involved in the making of a work capacity decision removed.

Read the 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.