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What constitutes suitable employment? Work Capacity Decisions

As to what constitutes suitable employment, see Section 32A.
(See extract)

Commentary on “Suitable Employment” Definition

It is important to note that the insurance company does not have to have regard to whether the work or the employment is available and whether the work or the employment is of a type or nature that is generally available in the employment market and regardless of the nature of the worker’s pre-injury employment or where the worker lives or resides.

Section 32A Definitions

In this Division and in Schedule 3:”base rate of pay” – see section 44G.Workers Compensation Law Update - Lawyer Sydney

base rate of pay exclusion” – see section 44G.

current weekly earnings” – see section 44I.

current work capacity“, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.

fair work instrument” means:

  1. a fair work instrument (other than an FWA order) within the meaning of the Fair Work Act 2009 of the Commonwealth, or
  2. a transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.

first entitlement period“, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.

maximum weekly compensation amount” means the maximum weekly compensation amount under section 34.

no current work capacity” , in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.

non-pecuniary benefit” -see section 44F.

ordinary earnings” -see section 44E.

ordinary hours of work” -see section 44H.

pre-injury average weekly earnings” -see section 44C.

relevant period” -see section 44D.

second entitlement period“, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.

* “suitable employment” , in relation to a worker, means employment in work for which the worker is currently suited:

  1. having regard to:
    1. the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
    2. the worker’s age, education, skills and work experience, and
    3. any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
    4. any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
    5. such other matters as the Workers Compensation Guidelines may specify, and
  2. regardless of:
    1. whether the work or the employment is available, and
    2. whether the work or the employment is of a type or nature that is generally available in the employment market, and
    3. the nature of the worker’s pre-injury employment, and
    4. the worker’s place of residence.

work capacity assessment” means a work capacity assessment under section 44A.

Work Capacity Decision” -see section 43.

worker with high needs” means a worker whose injury has resulted in permanent impairment and:

  1. the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 20%, or
  2. an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
    Note: Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
  3. the insurer is satisfied that the degree of permanent impairment is likely to be more than 20%, and includes a worker with highest needs.

worker with highest needs” means a worker whose injury has resulted in Reference Guide - NSW Workers Compensationpermanent impairment and:

  1. the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
  2. an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
    Note: Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
  3. the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.