The Incapacity Dilemma – Workers Compensation

Following the 2012 amendments, the most critical consideration in determining the extent to which a worker who has a current work capacity is entitled to weekly compensation involves the determination of that worker’s earning capacity which is defined as the greater of the worker’s current weekly earnings or the worker’s ability to earn in suitable employment (Section 35(1) of the WCA).

As to what constitutes suitable employment (defined in Section 32A of the WCA), it is quite phenomenal that one no longer has regard to whether the employment is available or generally available in the employment market nor to the nature of the worker’s pre-injury employment or the worker’s place of residence.  So in essence suitable employment no longer means real employment but can be employment that is theoretically available.

This has resulted in an extremely farcical situation that insurers are constantly encouraged to obtain evidence that maximises a worker’s capacity for work and then searched and matched with the highest possible paid employment that can be matched to that capacity whether or not it is close to the worker’s geographical location or whether or not it even currently exists in the open labour market.

This places workers who reside in areas with limited employment opportunities at great peril and also forces them to attempt to convince their doctors that they have no work capacity whatsoever.

This has made all the more perilous for the injured worker because of the limited availability to access legal advice for this particular type of dispute (until 2016 there was no paid legal advice for work capacity decisions and no access to the Workers Compensation Commission (still the case)).