GN 3.3 Certificate of capacity

Published: 12 August 2019
Last edited: 17 April 2020

Application: This guidance applies in part to exempt workers

Overview

The NSW certificate of capacity describes the nature of a worker's injury, their capacity for work, and the treatment required for a safe and durable recovery at work. It is usually completed by the worker’s nominated treating doctor or treating specialist in consultation with the worker.

This guidance looks at certificates of capacity and how they are used in workers compensation.

Certificate of capacity

The certificate of capacity is used by the insurer to inform decisions about a worker's current work capacity and their entitlement to compensation.

It will help the insurer, the worker and their employer develop an injury management plan concerning the treatment, rehabilitation and retraining required (where appropriate) for a successful recovery at/return to work for the worker.

A certificate of capacity must be a certificate given by a medical practitioner in a form approved by the Authority - see section 44B of the Workers Compensation Act 1987 (1987 Act).

The certificate of capacity tells the insurer:

  • the worker's name and details
  • the type of injury and date it occurred
  • what treatment is planned
  • how the injuries impact the worker's ability to do normal activities including work
  • the details of the medical practitioner who completed the certificate including their provider number.

It also helps the employer find suitable work for the worker so they can recover at work.

The certificate of capacity also includes the worker’s consent for the insurer, providers and SIRA to exchange information (see ‘Consent’ below for more detail).

Second and subsequent certificates of capacity

In response to the COVID-19 (Coronavirus) pandemic, amendments were made to section 44B of the 1987 Act and to the Workers Compensation Regulation 2016 (the 2016 Regulation) to temporarily permit SIRA approved treating physiotherapists and psychologists to issue second and subsequent certificates of capacity.

The first certificate of capacity must still be completed by the worker’s nominated treating doctor (or other treating medical practitioner) as part of their initial assessment. From 17 April 2020, a SIRA approved physiotherapist or psychologist providing treatment to the worker may now issue subsequent certificates.

The treating physiotherapist or treating psychologist certifying capacity must be SIRA approved, and use a form approved by the Authority. The Certificate of capacity – treating physiotherapist or psychologist form is available on the SIRA website.

Completion of the certificate may be completed as part of a telehealth consultation (video or telephone), if appropriate.

The information provided by the treating physiotherapist or treating psychologist on the certificate of capacity is for the assessment of a worker’s current work capacity. It is not to be relied upon to determine causation or liability.

If a subsequent certificate covers a period that overlaps with a period covered by an earlier certificate, then the later certificate prevails for the whole of the period covered by the later certificate.

If the worker has more than one type of injury and/or is receiving treatment by more than one practitioner, the treating physiotherapist or treating psychologist should consider whether the worker should be referred back to their nominated treating doctor or medical practitioner to certify their overall capacity.

These provisions will be in place for 12 months, unless repealed earlier.

Exempt workers

Exempt categories of workers may be entitled to weekly payments when a work-related injury has resulted in:

  • total or partial incapacity for work, and
  • loss of earnings due to the incapacity.

To demonstrate this, the exempt worker must provide a medical certificate to the insurer. The nominated treating doctor can use the workers compensation certificate of capacity for this purpose (although it is not mandatory).

Note: Provisions for second and subsequent certificates of capacity to be issued by a treating physiotherapist or treating psychologist do not apply to exempt workers.

An exempt worker may also claim reasonably necessary medical, hospital and rehabilitation expenses.

The insurer should gather enough information to determine whether the treatment or service is reasonably necessary (see Part 4.2 of the Workers compensation guidelines and Insurer guidance GN 6.1 Determining liability for medical and related treatment for more information on what is reasonably necessary).

The information provided can include:

  • a medical certificate or certificate of capacity recommending treatment
  • allied health recovery requests
  • specialist referrals or reports.

Consent

By signing the consent section of the certificate, the worker consents to the following parties exchanging information (for the purpose of managing their injury and workers compensation claim):

  • the treating medical practitioner
  • employer
  • insurer
  • other medical practitioners or health practitioners (treating and non-treating)
  • workplace rehabilitation providers, and
  • SIRA.

Note: Due to the COVID-19 pandemic, there may be situations where the worker may be unable to sign the consent section on a certificate of capacity, for example if the consultation was conducted as a telehealth consultation. To ensure compliance with privacy laws, the doctor (or treating physiotherapist or psychologist) may forward the certificate to the worker to sign, or alternatively obtain verbal or email consent.

Medical certification

The certificate of capacity should contain a clear medical diagnosis using acceptable medical terminology.

In the early stages of a claim the diagnosis may be unclear and as a result the nominated treating doctor may indicate a provisional rather than final diagnosis. Insurers should be mindful of this when considering liability and requests for reasonably necessary treatment for the worker.

An insurer may seek clarification from the nominated treating doctor about the impact of a provisional diagnosis on treatment planning, return to work, and the expected timeframes for when a final diagnosis might be known.

Example

After an incident at work, Alecia reported to her nominated treating doctor that she experienced extreme levels of anxiety, after being humiliated by two of her colleagues during a tool box talk she was delivering to 50 of her colleagues. She provided a certificate of capacity directly to the insurer which indicated she had been given a diagnosis of ‘anxiety disorder.’

The insurer called the nominated treating doctor and the doctor confirmed that the diagnosis of ‘anxiety’ was a provisional diagnosis. The doctor could still prescribe treatment and provide a certificate as to Alecia’s capacity for work before a final diagnosis is established. The doctor stated that it should be possible to make a final diagnosis after four to six weeks.

Even though ‘anxiety disorder’ can be used for a group of disorders, it is considered an acceptable provisional diagnosis until the nominated treating doctor is able to establish a final diagnosis.

Management plan

This section of the certificate of capacity may include diagnostic investigations, specialist referrals or treatment service referrals (including referral to a workplace rehabilitation provider) recommended for the current period.

The information provided enables the insurer to know what services are required and what invoices to expect.

The insurer must be satisfied the treatment requested by the nominated treating doctor is reasonably necessary (see Part 4.2 of the Workers compensation guidelines and Insurer guidance GN 6.1 Determining liability for medical and related treatment for more details on reasonably necessary).

Capacity for work

The certification of capacity for both work and daily activities helps employers and insurers to identify suitable work to help the worker recover at/return to work with appropriate support.

The insurer can promote the health benefits of good work with the nominated treating doctor and provide a copy of the position description/work duties where available.

Employment declaration

The worker is required to complete the employment declaration section of the certificate of capacity each time it is submitted to the insurer.

This is to inform the insurer whether they have been engaged in employment, self-employment or voluntary work. A worker may receive or be entitled to receive monetary or non-monetary payment for this employment (section 44B(1) of the 1987 Act).

Note: The worker declaration does not need to be completed by exempt workers. However, all workers are required to notify the insurer if they return to work or continue to work in any capacity after the injury.

Certificate of capacity duration

The certificate should, in most instances, not exceed 28 days (section 44B(3) of the 1987 Act).

If the certificate exceeds the 28-day timeframe, the nominated treating doctor (or treating physiotherapist or treating psychologist) must provide reasoning to justify the longer timeframe. The insurer should be satisfied that the reason for the extended timeframe is valid (section 44B(4) of the 1987 Act).

In accordance with the Medical Council of New South Wales medical certificate guidelines, a certificate may be issued subsequent to the worker being away from work. However, the certificate should:

  • state the date the certificate was issued
  • cover the period during which the doctor believes the patient would have been unfit for work (for example, the patient was treated at emergency and is now visiting their treating doctor at their earliest convenience).

A certificate of capacity is of no effect to the extent that it relates to a period that is more than 90 days before the certificate is provided (section 44B(5) of the 1987 Act).

Providing the certificate of capacity to the employer/insurer

The worker must give the insurer a certificate of capacity, or other medical certification, to allow the insurer to determine liability, calculate and start making weekly payments.

The worker must continue to give the employer (or insurer) updated certificates of capacity, or in the case of an exempt worker, other medical certification, for the insurer to determine any ongoing entitlement to weekly payments and inform decisions about reasonably necessary treatment (see section 270 of the Workplace Injury Management and Workers Compensation Act 1998).

Issues with certificates of capacity

Insurers should proactively address any issues that arise with certificates of capacity. Common issues include:

  • incomplete details
  • a diagnosis that does not use medically accepted terminology
  • certificate completed by a doctor other than the nominated treating doctor (excluding treating physiotherapists or treating psychologists for second and subsequent certificates)
  • unsigned consent or employment declaration
  • certificate extends for more than 28 days without explanation.

The insurer should contact the worker and/or nominated treating doctor, treating physiotherapist, or treating psychologist, as soon as an issue arises. In most instances, the issue can be resolved quickly. The insurer is to make all attempts to rectify the issue without interruption to the worker’s treatment and/or weekly benefits.

Additional medical conditions

Insurers are to take prompt action to respond to new medical conditions included on the certificate of capacity. They may do this by contacting the nominated treating doctor to establish whether the additional condition is work-related.

If the nominated treating doctor considers the additional medical condition is work-related, the insurer should take appropriate action to investigate liability for the additional medical condition.

Non-work-related conditions

A holistic approach to injury management is encouraged. The nominated treating doctor may include a non work-related medical condition on the certificate of capacity to inform the insurer  of a condition that may impact the worker’s recovery and return to work.

In this case, the insurer has the opportunity to work with the doctor to consider how the non work-related medical condition may impact on recovery and return to work. The employer is not liable for payment for treatment for the non work-related medical condition (and any absence from work due to it).

Interstate workers

If a worker has moved interstate and is requested to obtain a certificate of capacity, a doctor in their new local area can become their nominated treating doctor and complete the certificate of capacity.

The new nominated treating doctor must be registered with the Australian Health Practitioner Regulation Agency (AHPRA) and agree to participate and take responsibility for coordinating all aspects of the worker’s treatment and return to work management.

Communicating effectively with doctors

Treating health professionals, particularly doctors, exert a significant influence on work absence and work disability, particularly in relation to medical certification practices.

Note: Effective communication between the doctor, the insurer, other treating practitioners and the employer will facilitate a timely and safe recovery and return to work.

Insurers can optimise communication by understanding and having proper regard to the doctor's role including:

  • finding out which method of communication suits the doctor best and communicating with the doctor via their preferred means of communication
  • engaging in respectful interactions
  • reassuring the doctor that it is the insurer’s role to support the worker to remain at/return to work in accordance with the worker’s certified capacity
  • letting the doctor know that the insurer supports the health benefits of the worker’s participation in good work
  • avoiding confusing language in correspondence and ensuring requests for information are well-considered and do not ask the doctor for information they have already provided
  • minimising delays in approval of reasonably necessary treatment and the processing of invoices.

There is value in building a positive relationship with the GP practice manager to maximise the opportunities for effective communication with the nominated treating doctor.

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