Work Capacity Assessments and Work Capacity Decisions

Work Capacity Assessments and Work Capacity Decisions – Workers Compensation

The amending act imposes additional requirements on the insurer to conduct regular work capacity assessments which may, or may not, result in a Work Capacity Decision affecting the worker’s weekly benefits.

The work cover work capacity guidelines (the Guidelines) state that a work capacity assessment may be conducted at any stage throughout the life of the claim.

After 130 weeks, the insurer must conduct a work capacity assessment at least once every two years.

(See Section 43 Extract)

Section 43 Work Capacity Decisions by ‘Insurers’

1. The following decisions of an insurer (referred to in this Division as Work Capacity Decisions) are final and binding on the parties and not subject to appeal or review except review under section 44BB or judicial review by the Supreme Court:
   1. a decision about a worker’s current work capacity,
   2. a decision about what constitutes suitable employment for a worker,
   3. a decision about the amount an injured worker is able to earn in suitable employment,
   4. a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,
   5. a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,
   6. any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)-(e).
2. The following decisions are not Work Capacity Decisions:
   1. a decision to dispute liability for weekly payments of compensation,
   2. a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.
3. The Commission does not have jurisdiction to determine any dispute about a Work Capacity Decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a Work Capacity Decision of an insurer.

Commentary

It is important to note that Section 43 (Subsection 2) sets out what is not a Work Capacity Decision and includes a decision to dispute liability for weekly payments of compensation (See Section 43 Subsection 2(a)).

It is also critically important to note that Section 43 (Subsection 3) provides that the Workers Compensation Commission does not have jurisdiction to determine any dispute about a Work Capacity Decision of an insurer and is not to make a decision in respect of dispute before the Commission that is inconsistent with a Work Capacity Decision of an insurer.

Section 43 Subsection 1(c) is also important in that an insurer’s decision about the amount an injured worker is able to earn in suitable employment.
As to what constitutes suitable employment, see Section 32A.

Walker Law Group Workers Compensation Lawyers will evaluate your case and determine if an application for a grant of legal assistance will be made to WIRO to help you pay for your legal fees and medical reports so that you receive your proper entitlements. Call our office today 1300 363 013