If you have a workers’ compensation claim in NSW, and you’re not an exempt worker, at some point during your claim, you will receive a Work Capacity Decision. A Work Capacity Decision will be sent to you in a letter from the insurer. If you’ve received one of these letters and you aren’t sure what it means or what your next steps should be, read on.
What is a Work Capacity Decision?
The workers’ compensation insurer will make decisions about your capacity for work many times over the course of your claim. These decisions are called Work Capacity Decisions “WCDs”. Most commonly, a WCD is a decision about:
- Your capacity for work (meaning how many hours and days you are fit to work despite your injury);
- What employment is suitable for you (meaning what kind of work you are fit to do after your injury); and
- How much you can earn in that suitable employment.
While a WCD may simply say that your weekly payments are going to stay the same, it could also say that the insurer is going to reduce, or totally stop, your weekly payments.
Often this is because the insurer has located suitable jobs they believe you can do, despite your injury and disabilities. When the insurer is looking for these suitable job options, they do not have to take into account:
- Where you live;
- Whether the job identified is available at that time;
- Whether you are likely to be able to actually get that type of work in your area; and
- What you did for work before your injury.
This means that the insurer can make a WCD reduce or cut off your weekly payments based on, for example, a job they believe you can do that is based in Sydney, when you live in Lismore, or a job that is based in Brisbane when you live in Tweed Heads.
How is a Work Capacity Decision made?
When a WCD is being made, the first thing that will happen is you will receive a phone call from your case manager letting you know they are making a WCD. You will then receive a follow-up letter advising that a work capacity assessment is taking place and inviting you to provide any evidence you want the insurer to consider when making the WCD.
After the assessment stage is over, the insurer will issue a formal WCD in writing and send it to you along with copies of any evidence they rely on for making that WCD. This evidence may include a vocational report they have obtained from a rehabilitation specialist which sets out 2-3 jobs they believe you could still perform taking into account your ongoing restrictions and disabilities as a result of your work injury.
If you have been on weekly compensation payments for at least 12 weeks, the insurer is required to give you a 3-month notice period before the WCD takes effect. This means that if the WCD reduces or cuts off your weekly payments, the insurer cannot enforce it until that notice period has expired.
Can I challenge a Work Capacity Decision?
The Independent Review Office (IRO) can provide legal funding for you to get a lawyer to challenge a WCD.
At Bourke Legal, all our solicitors are Approved Legal Service Providers with IRO.
If you are to be successful in your application to overturn a WCD, you need evidence to dispute the decision. This could be medical evidence stating that the suitable jobs the insurer says you can do are actually above your ability in terms of hours or your physical capacity, or, that the jobs the insurer has selected are not suitable based on your training, education and experience.
Challenging a WCD is done by filing an application in the Personal Injury Commission. If this application is filed before the notice period expires, the decision is “stayed” (put on hold) until the Commission determines your matter. This means that your weekly payments will continue until the Commission makes a decision about whether the WCD is correct or incorrect.
It is very important that you contact a lawyer as soon as you receive a WCD, so the lawyer has plenty of time to review it, provide you with advice, gather any evidence needed to challenge the decision and to file an application in the Commission before the notice period ends.
If the Commission finds the WCD is correct, as soon as that determination is issued the insurer can reduce or cut off your payments.
However, if the WCD is found by the Commission to be incorrect, the Commission can make an order overriding the WCD.
It’s not possible to guarantee that you will be successful at overturning the insurer’s WCD in the Personal Injury Commission. It is therefore a good idea to contact Centrelink at the earliest opportunity to find out if you may be eligible for any type of benefit. The best and most efficient way to contact Centrelink is via your personal profile on mygov.com.au.
Don’t bury your head in the sand. We know receiving a WCD can be upsetting, but the best thing you can do is to contact us Compensation lawyers at Bourke Legal for free and independent legal advice as soon as possible.