What is a work capacity decision?

What is a Work Capacity Decision?

The “work capacity decision” is a decision made by the insurer about:

• The worker’s current work capacity
• What constitutes suitable employment for a worker
• The amount the injured worker is able to earn in suitable employment
• The amount of pre injury average weekly earnings and current weekly earnings
• 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
• Any other decision that affects a worker’s entitlement to weekly compensation.

A work capacity decision can be made at any time throughout the life of the claim, but in particular will be made at or prior to being in receipt of weekly benefits for a period of 130 weeks of compensation (2.5 years). This period is important as a worker is only entitled to receive weekly payments beyond 130 weeks if they are either;

1. Totally unfit for work or
2. If the work capacity decision accepts that the worker is partially unfit for work, the worker must be working at least 15 hours per week.

A work capacity decision can be appealed and the NSW government has now allowed payment for legal costs if the decision was made after 16 December 2016. A work capacity decision can be reviewed as followed:

• Review by insurer

A worker may request an internal review of a work capacity decision by the insurer after receiving that decision, the worker must give a completed Work Capacity – Application for Internal Review by Insurer form to the insurer specifying the grounds on which the review is being sought with any information on why you disagree with the decision and including medical information.

• Review by WorkCover NSW

If the worker is not satisfied with the outcome of the insurer’s internal review, or if the review is not completed within 30 days, the worker may lodge a Work Capacity –Application to Merit Review Authority form. The worker must lodge an application of Merit Review within 30 days of receiving the insurer’s decision with Workcover NSW.

• Review by the WorkCover Independent Review Office

If the worker is still not satisfied with the outcome of the Work Cover Merit review, the worker may lodge an Application for Receiving Review from the Work Cover Independent Office (WIRO) within 30 days of receiving the review decisions, contact WIRO on 139 476.

The Work Cover Authority of NSW has issued guidelines for work capacity decisions, for internal review by the insurers and the merit review by the authority which can be found on the Work Cover NSW website. The NSW government now allows lawyers to assist in seeking a review either from the insurer or Work Cover. Workers can now seek the assistance of a lawyer if the work capacity decision was made after 16 December 2016.

How is work capacity determined?

Work capacity in NSW workers compensation is determined through a comprehensive assessment that considers the injured worker’s:

• Physical capabilities: Medical reports and assessments evaluate the worker’s physical limitations and restrictions.
• Mental health: Psychological assessments may be conducted to assess the impact of the injury on the worker’s mental health and work capacity.
• Vocational skills: The worker’s skills, experience, and education are considered to identify suitable employment options.
• Age: The worker’s age is factored in to determine potential employment opportunities and retraining needs.

Key factors influencing work capacity determination include:

• Nature and severity of the injury: The type and extent of the injury significantly impact a worker’s ability to perform work tasks.
• Medical evidence: Reports from treating doctors, specialists, and other healthcare providers are crucial in assessing work capacity.
• Functional capacity evaluations: These assessments measure a worker’s physical abilities to perform specific tasks.
• Vocational assessments: These evaluations identify suitable employment options based on the worker’s skills and limitations.

What is a work capacity decision review?

A work capacity decision review is a process that allows an injured worker to challenge a work capacity decision made by their insurer. This review can be requested if the worker disagrees with the decision about their ability to work or the type of work they are considered suitable for. The review process involves providing additional evidence, such as medical reports or vocational assessments, to support the worker’s claim. The insurer will then reassess the work capacity decision based on the new information.

What is a work capacity assessment?

A work capacity assessment is an evaluation conducted to determine an injured worker’s ability to perform work-related activities. It is typically carried out by healthcare professionals, vocational experts, or other qualified assessors. The assessment involves a thorough examination of the worker’s physical and mental capabilities, as well as their work history and skills. The goal is to identify suitable employment options or determine if the worker is capable of returning to their pre-injury job with or without modifications.

Key components of a work capacity assessment include:

• Medical evaluation: Assessing the worker’s physical limitations and restrictions.
• Functional capacity evaluation: Measuring the worker’s ability to perform specific work-related tasks.
• Vocational assessment: Identifying the worker’s skills, experience, and transferable skills.
• Job analysis: Evaluating the physical and mental demands of the worker’s pre-injury job or potential alternative employment.

By understanding these terms and the factors involved in work capacity determination, injured workers can better navigate the workers compensation system and advocate for their rights. Should you have any questions in relation to work capacity decisions please do not hesitate to contact us on (02) 8329 9500 or info@garlingandco.com.au.