Work Capacity Decisions Explained

Do compensation lawyers assist with work capacity decisions?

Taylor & Scott Lawyers are familiar with all aspects of compensation claims, including work capacity assessments, decisions, and outcomes. Compensation lawyers work alongside other legal professionals, medical experts, government agencies and insurers to provide clients with a comprehensive, tailor-made compensation claim.

Qualified industry experts, including Taylor & Scott Lawyers, all play their role in claim outcomes, although work capacity decisions are ultimately in the hands of workers compensation insurers. Naturally, compensation lawyers assist with work capacity decisions, as your first point of contact and go-between with other professions and government agencies.

How is a work capacity decision made?

Work Capacity Decisions are decisions about:

  • a worker’s current work capacity
  • what constitutes suitable employment for the worker
  • the amount an injured worker can earn in suitable employment
  • the amount of a worker’s AWE or current weekly earnings
  • whether a worker is unable, without substantial risk of further injury, to engage in certain employment because of the nature of that employment, or
  • any other decision that affects a worker’s entitlement to weekly payments including a decision to suspend, discontinue or reduce the amount of weekly compensation payable in relation to any of these matters.

What compensation lawyers do and don’t do in work capacity decisions?

Although Taylor & Scott compensation lawyers are on hand to guide, support, and formulate every stage of your compensation claim, some matters are out of our hands. Work Capacity Decisions, for example, are a matter for the worker’s compensation insurer to make once all documentation has been examined. No proceedings can be brought in the Workers Compensation Commission in relation to a Work Capacity Decision. The insurer’s decisions are final and binding and, with limited exceptions, are not subject to appeal or review except as provided by the legislation or judicial review by the Supreme Court.

An insurer is required to conduct a work capacity assessment to assess the worker’s entitlement to weekly payments of compensation after the “Weekly Payments Second Entitlement Period” during the last year of the second entitlement period and thereafter at least once every two years. An insurer can otherwise conduct a work capacity assessment of a worker at any time.

An insurer can make a Work Capacity Decision without having conducted a work capacity assessment. If a worker refuses to attend an assessment or fails to properly participate in the assessment process the worker’s rights to weekly payments may be suspended.

Can a work capacity decision be reviewed?

Work Capacity Decisions cannot be reviewed in the Workers Compensation Commission. A worker can seek judicial review in the Supreme Court but that is a very expensive process. Otherwise, the following reviews are available to a worker:

  1. The worker may seek an internal review by the insurer to be conducted in accordance with the guidelines. Whilst an application for review of a Work Capacity Decision can be lodged at any time, the Work Capacity Decision will be stayed pending the outcome of the review only if the application for review is lodged within 30 days. Ideally, there should be compelling (fresh) material or legal argument submitted with the application for review which has not already been considered by the insurer.
  2. Once the insurer has carried out the internal review requested by the worker, the worker may apply to the State Insurance Regulatory Authority (“SIRA”) for a merit review of the Work Capacity Decision. That application must be made within 30 days after the worker receives the insurer’s decision on the internal review. A decision for a merit review can also be made if the insurer fails to conduct an internal review and notify the worker of the internal review within 30 days after that application for internal review is made.
  3. If a worker is not satisfied with the SIRA merit review the worker may seek a further review by the Workers Compensation Independent Review Office but only as to the insurer’s procedures in making the Work Capacity Decision and not in relation to the merits of the decision made. The application for this review must be made within 30 days after the worker is notified of the outcome of the merit review.

How do I choose a good compensation lawyer?

When choosing a compensation lawyer, it’s important to have realistic expectations from the outset. It would be easy to promise the world and deliver nothing, but instead, Taylor & Scott Lawyers have been representing the people of NSW since 1905, developing generations of trust based on fairness. We fully explain what we can do for you, providing a clear picture of compensation claim prospects while also guiding you through the progressive, procedural claim steps. Claims can become confusing and complex, so a good compensation lawyer will carry the burden of responsibility for you. Taylor & Scott Lawyers are the industry experts capable of achieving successful outcomes that meet client expectations.

A lawyer acting for a worker is not entitled to be paid or recover any costs relating to a review of a Work Capacity Decision.

Contact us on 1800 600 664 or complete the contact form on our website.

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