Can a S.74 notice be considered a "work capacity decision"?

Facts

The worker was injured in the course of her employment with St George Bank Limited. Weekly compensation payments were made by the insurer. Those payments stopped in May 2015 following a Section 74 Notice given in March 2015.

The worker started proceedings in the Workers Compensation Commission challenging the decision of the insurer to stop weekly payments.

The worker had received more than 130 weeks of weekly compensation so her entitlement to receive ongoing weekly payments of compensation was subject to Section 38 of the Workers Compensation Act 1987.

The Section 74 Notice in March 2105 issued by the insurer was worded as follows:-

”Our evidence indicates that your alleged injury of 6 October 2006, which occurred whilst you were in the employ of St George Bank Limited has now resolved and you do not continue to suffer from any injury within the meaning of Section 4 of the Workers Compensation Act 1987.  In our opinion the work injury that you allege to have received on 6 October 2006, which occurred whilst you were in the employ of St George Bank Limited, is no longer causing you any incapacity for work.”

The worker sought to challenge this decision.

Issue

The issue in the proceedings was whether the Workers Compensation Commission had any jurisdiction to hear and determine weekly payment disputes after 130 weeks pursuant to S.38.

Section 43 of the Workers Compensation Act states that:

1. A work capacity decision made by an insurer is final and binding on the parties.
2. The Workers Compensation Commission has no jurisdiction to overturn a work capacity decision.
3. The Workers Compensation Commission does have jurisdiction to make an order that is consistent with a work capacity decision of an insurer.

S.43 also states that the following decisions are not work capacity decisions:

1. A decision to dispute liability for weekly payments of compensation, and
2. A decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1988 Act.

The question for determination was whether the Section 74 Notice issued in March 2015 was a “work capacity decision” or whether it was a decision to “dispute liability for weekly payments”.

Determination

A Presidential Member found that the Section 74 Notice was a “work capacity decision”. The Workers Compensation Commission had no jurisdiction to hear the matter.

The worker, in those circumstances, has a right to seek a review under Section 44BB of the Act as follows:

1. Request an internal review of the decision by the insurer and;
2. If needed a merit review of the decision through the WorkCover Authority of NSW.

If the Section 74 Notice stopping weekly payments is on its words in reality a “work capacity decision”, and not a decision to decline liability, then the Workers Compensation Commission has no jurisdiction.

The wording of the Section 74 notice will be crucial in deciding if the notice is a “work capacity decision” or ” a decision to decline liability.

If the the notice is considered to be a “work capacity decision” the Commission has no jurisdiction. If on the other hand the notice is considered to be ” a decision to decline liability” then the Commission does have jurisdiction to award weekly payments, as long as such an award is not inconstant with any prior work capacity decision.