When you suffer an injury, the biggest question in relation to your claim for personal injury (whether you are claiming workers compensation, making a motor accident claim, or claiming civil damages) is how your injury impacts your ability to work. If your injury is severe, you might not be able to work in the same job that you did before your injury. Your lawyers, and the lawyers for the insurer, may arrange an assessment of your functional capacity and/or a vocational assessment. These two assessments combined may also be referred to as an “earning capacity assessment”.
In this article, we will explain what these assessments are, what you can expect when attending one, and why you might need to attend one.
What is a Functional Capacity Assessment?
A Functional Capacity Assessment is an evaluation of how your injury affects your ability to function in everyday life. The assessor will be briefed with your medical history and medical reports by whomever has referred you for the assessment.
If you have suffered a physical injury (for example, an injury to your back, or perhaps your knee), your functional capacity will likely be assessed by a physiotherapist, an occupational therapist, or an occupational physician. Depending on the body part which is injured, an assessment of your physical capacity could involve the assessor testing your ability to bend, squat, sit, stand, walk, climb or descend stairs, lift or carry weights, grip strength, or fine motor skills like writing.
When attending for an assessment of your physical functional capacity, it’s important to wear comfortable clothes and suitable shoes (for example, shorts, t-shirt and runners). Do your best to complete tasks, but not to the point of pain.
If you have suffered a psychological injury, your functional capacity will be assessed by a psychologist. An assessment could involve completing psychological testing (so it’s a good idea to bring your glasses if you need them to read) and a psychological examination.
Bring a list of your current treatment providers, and your medications (including dosages). If you can get it, bring a copy of your position description, or if you don’t have one, try to write down all the tasks that were required in your job before you were injured, and take that to the appointment instead.
The end result of a functional assessment is a report that states:
- How many hours of work you can do per day or week; and
- What sort of restrictions (whether physical or psychological) that you would need to observe if you were working; and
- When you can start doing this sort of work.
You can expect the functional assessment to take about an hour, depending on how in depth it is and what injuries are being assessed.
What is a Vocational Assessment?
A Vocational Assessment is a review of your education, training and experience before your injury, in order to work out what you might be able to do for work after your injury. If a vocational assessment is being performed, it could be undertaken after a functional capacity assessment (so the vocational assessor can take those results into account).
The vocational assessor is looking for your “transferable skills”. These are those skills that you have gathered over the course of your working life which could assist you in doing a different job. For example, if you work as a painter and then have an injury to your shoulder which means you can’t work “on the tools” anymore, a vocational assessor could identify that you could work at Bunnings in the paint section, because you have a lot of knowledge which would benefit customers about the different types of paint and how they can be used.
Once the assessor has worked out what your transferable skills are, the next step is usually to identify 1-3 jobs that you could do. This might be with your existing skills, or, the assessor could recommend that you go and do some retraining, or study, in order to get the skills you need to get one of those jobs.
The final step the assessor takes is to look at your labour market and identify local potential employers, and then phone those employers to ask whether they would hire someone like you (without using your name of course). If your assessment is being done for the insurer, the vocational assessor will often conveniently not mention when speaking to these employers that you have an injury.
In reviewing the local labour market, the assessor will identify the standard wage that applies to the job the assessor says you can do. For example, if the result of the vocational assessment is a report that says that you can work as a waitress, and the functional capacity assessment says that you have capacity to work for 15 hours per week, the assessor may obtain job advertisements from Seek or other sources for this type of work at (for example) $25 per hour in wages. The final result is a report which states that your current earning capacity is $375 per week (15 hours x $25 per hour).
You can expect the vocational assessment to take about an hour. Much of the report has to be researched by the assessor after your examination has ended.
Why am I being referred for a Functional/Vocational Assessment?
The insurer may refer you to an assessment like this because your employer says you cannot come back to work, and you need to find a new job.
If you are making a claim for damages, both your lawyers and the lawyers for the Defendant need to gather evidence about your earning capacity in order to evidence your claim for damages – and specifically, to prove your economic loss.
As an example, the Defendant serves an Earning Capacity Assessment that says that you can work 20 hours per week as a process worker. The report relies on wages that are paid by a meatworks which is located 1 hour’s drive from your house, and that’s in the middle of the day, when there is no traffic. If there’s traffic on the highway, the drive could be anywhere between 1-2 hours.
Your lawyer then obtains an Earning Capacity Assessment which emphasises that your ability to sit is limited to 30 minutes at a time due to pain, and because of the heavy pain medication that you take, you should not drive other than locally. Your lawyer makes sure that this restriction regarding sitting is supported by your treating GP and surgeon. The report says that you can work 10 hours per week as a shop assistant, with significant restrictions regarding sitting and standing.
When your case goes to court, the Judge rejects the findings in the insurer’s Earning Capacity Report, on the basis that a clearer history regarding your injury and restrictions has been taken by your assessor, and the recommendations about your earning capacity are more realistic than those of the insurer’s assessor. The damages which you are awarded for economic loss are therefore higher than they would have been if the Judge had preferred the insurer’s Earning Capacity Report.
Still have questions? Talk to us about how we can help you.