Work capacity decision

Published: 12 August 2019
Last edited: 12 August 2019

This information does not apply to exempt workers.

A work capacity decision

A work capacity decision is a decision made by an insurer about:

  • whether the worker has current work capacity
  • what is considered suitable employment for the worker
  • how much the worker is able to earn in suitable employment
  • the worker’s pre-injury average weekly earnings (PIAWE) or current weekly earnings
  • whether a worker is, as a result of injury, unable (without substantial risk of further injury) to engage in employment of a certain kind because of the nature of that employment
  • any other insurer decision that affects a worker’s entitlement to weekly payments of compensation (including a decision to suspend, discontinue or reduce the amount of the weekly payments payable to a worker on the basis of any decision referred to in the above points).

A work capacity decision can occur at any time after an insurer has considered evidence it has received (such as a certificate of capacity), or after considering evidence obtained through a formal work capacity assessment process.

Work capacity decisions are not to be confused with other claims decisions. For instance, a decision to dispute an entitlement to weekly payments or medical, hospital or rehabilitation expenses is not a work capacity decision.

Insurers should consider the principles of procedural fairness (including fair notice), when making any decision that may affect a worker’s rights or interests.

Procedural fairness is concerned with the fairness of the procedure by which a decision is made, rather than the substance of the decision.

Insurers will need to determine what the principles of procedural fairness require on a case-by-case basis, having regard to the nature and potential consequences of each decision made.

Notifying the worker of a work capacity decision

A worker can be advised of a work capacity decision by an insurer in different ways.

Where the decision doesn’t change the amount of weekly payments the worker receives, the worker should be contacted to inform them of the decision, and their right to request an internal review if they do not agree with the decision. This conversation should be noted in the worker’s file.

Where the decision reduces the amount of, or discontinues, weekly payments to a worker, the insurer is required to provide a written decision notice to the worker as per section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

Example

A worker’s capacity to work upgrades and their earnings from their employer increase. This means their weekly payments of compensation will reduce, but the overall weekly payment amount (the combination of earnings and compensation) remains the same.

In this situation, the insurer is to inform the worker of the change to weekly payments. If the insurer advises the worker verbally, the conversation should be noted in the worker’s claim file.

The decision notice

The insurer decision notice should be in plain English, and must include:

  • a concise and easy-to-understand statement of the reasons for the work capacity decision and the issues relevant to the dispute (using the approved decision notice summary form)
  • the relevant sections of the legislation on which the insurer relies
  • a statement identifying all the reports and documents submitted by the worker in making the claim, and by the employer in connection with the claim
  • a statement identifying all the reports relevant to the decision, whether or not the report supports the reasons for the decision (see clause 41 of the Workers Compensation Regulation 2016)
  • a statement advising that a copy of a report must be provided by the insurer under clause 41(3) of the Workers Compensation Regulation 2016 (except in instances where providing a copy of the report would pose a serious threat to the life or health of the worker or any other person, see clause 41(5) or (6))
  • advice to the worker that they can make a request (in writing) to the insurer to review their work capacity decision
  • a statement that the worker can seek advice or assistance from a union or lawyer
  • that the worker can seek advice or assistance from the Workers Compensation Independent Review Office (WIRO) on 13 94 76
  • that the worker can contact the Registrar of the Workers Compensation Commission (the Commission) by email registry@wcc.nsw.gov.au or post to Level 20, 1 Oxford Street, Darlinghurst NSW 2010.

Where an insurer fails to provide a copy of a report as required by the Regulation, that report is not admissible in proceedings in relation to the dispute concerned.

Required period of notice

If a worker has been in receipt of weekly payments for a continuous period of at least 12 weeks then the insurer is required to provide a three month notice period for the intention to discontinue or reduce weekly payments, commencing from the date the worker receives the notice to discontinue or reduce weekly payments.

The insurer decision notice can be delivered personally to a worker or by post. Where provided by post, the decision notice is taken to have been delivered to the worker on the seventh working day after it was posted.

Dispute resolution

Examples of disputes include disagreement:

  • on the worker’s current ability to return to work
  • on what is suitable work
  • on how much the worker can earn in suitable employment
  • on what the worker’s PIAWE or current weekly earnings are
  • about whether the worker is able to engage in employment of a certain kind, or
  • any other decision that impacts the worker’s entitlement to weekly payments of compensation.

Further information on dispute resolution can be found in 'Resolving complaints and disputes'.

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