Work capacity disputes

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.

Applying for an internal review by insurer

An internal review is a review of the work capacity decision by someone within the insurer other than the person who made the decision. The review will consider information used in making the decision and any further information that you provide in support of the application. An application must be made using the Work capacity decision – application for internal review by insurer form.

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.

Applying for a SIRA merit review

After the insurer has completed the internal review (or has not completed the review within 30 days of the application), you may seek a merit review of the insurer’s work capacity decision.

You must apply for a merit review within 30 days of:

  • receiving the internal review decision, or
  • the due date of the internal review decision if the insurer has not notified you of its decision.

An application must be made using the Work capacity - application for merit review by SIRA and you must identify the reasons why you are seeking a review of this decision. You must also notify the insurer of the merit review application by providing them with a copy of the application. Further information on merit reviews can be found in the Merit review user guide .

We may decline to review a decision if the application:

  • 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

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 merit review user guide 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.

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 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 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

Further information

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