If you wish to challenge a work capacity decision, the workers compensation insurer must pay the legal fees.
What is a Work Capacity Decision?
A Work Capacity Decision is a decision made by the insurer about:
- The worker’s current capacity for work; or
- What constitutes suitable employment for a worker; or
- The amount an injured worker is able to earn in suitable employment; or
- The amount of pre injury average weekly earnings and current weekly earnings; or
- Whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment because of the nature of that employment; or
- Any other decision that effects a worker’s entitlement to weekly compensation.
A Work Capacity Decision can be made at any time during the life of the claim.
Challenging a Work Capacity Decision
You will be notified in writing by the insurer when they make a Work Capacity Decision. If you disagree with this decision you must lodge an internal review with the insurance company. To lodge an internal review you must complete a “Work Capacity – Application for Internal Review by an Insurer” form. The insurer is then required within 30 days is undertake a review of their Work Capacity Decision and issue a further decision.
If a worker is not satisfied with the outcome of the insurers’ internal review, then the worker has 30 days in which to lodge a Merit Review to the WorkCover Authority.
Legal costs are now payable by the insurer to lawyers to assist and provide advice to workers to lodge a Merit Review with the WorkCover Authority of NSW. Legal costs are only payable for Work Capacity Decisions that are made on or after 16 December 2016.
Work Capacity Decisions are complex and the law which applies to those decisions is difficult to understand. You should seek the assistance of an experienced accredited specialist in personal injury law to assist and advise whether you should challenge an insurers’ Work Capacity Decision.
The insurer’s decisions are often overturned by the WorkCover Authority of NSW.
All legal costs are paid by the workers’ compensation insurer and there are no costs payable by workers in challenging the decision.
If you would like further advice in relation to challenging a Work Capacity Decision please do not hesitate to contact us.
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