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Work Capacity Assessments and Work Capacity Decisions

Questions and Answers

 

What is a work capacity assessment?

It is an assessment conducted by the insurer to determine if the injured worker has the capacity to return to their pre-injury employment or some other suitable employment.

What is fair notice?

Fair notice is the notice given by the insurer to an injured worker that they are going to be making a work capacity decision that may result in the reduction or cessation of weekly compensation.

What is suitable employment?

It is employment which an injured worker is currently suited to perform taking into account the workers incapacity, age, education, skills and work experience. It does not take into account the availability of the work, the nature of the worker’s pre-injury employment or the worker’s place of residence.

When can the insurer make a work capacity assessment?

The insurer can make a work capacity assessment at any time but must do so within weeks 78 to 130 of weekly compensation and within 2 years of the last assessment.
Workers with the highest needs are not to be assessed unless requested by the injured worker and the insurer feels that it is appropriate.

What information will the insurer consider when making a work capacity assessment?

The insurer will consider all relevant information held on file and any additional documentation provided by the worker. The insurer may also require the worker to be assessed by a medical specialist or healthcare provider.

What is a work capacity decision?

Any decision made by the insurer that may affect a workers entitlement to weekly compensation.

A work capacity decision can include a decision about

  • the workers work capacity
  • suitable employment
  • the workers earning capacity
  • the workers pre-injury average weekly earnings
  • a workers inability to return to work due to a substantial risk of further injury due to the nature of their injury
  • any other decision that affects a workers entitlement to weekly compensation including a decision to suspend, discontinue or reduce weekly compensation.

A work capacity decision does not include a decision on liability.

What notice period is the insurer required to give if payments of weekly compensation will be reduced or discontinued as a result of a work capacity decision?

If the worker has received weekly compensation for at least 12 continuous weeks the insurer must provide 3 months notice prior to the reduction coming into effect.

Can a work capacity decision be reviewed?

Yes. There are three different types of reviews that can be requested by the worker and these need to be done in the order listed below.

  1. Internal review which is done by the insurer
  2. Merit review which is done by SIRA
  3. Procedural review which is done by the Workers Compensation Independent Review Office.

If at the end of this review process the worker is not happy with the outcome they may seek a judicial review in the Supreme Court.

The Workers Compensation Commission cannot review a work capacity decision.

How to apply for an internal review?

To apply for an internal review the worker should complete and submit to the insurer the Work Capacity Application for Internal Review by Insurer form.

The worker must identify the decision that they are seeking a review of and provide reasons for the review. The worker may also supply additional information to the insurer which has not been taken into account.

The review can be made at any time but in order to have the protection of a “stay” the application should be lodged within 30 days of receiving the decision.

How long does the insurer have to respond to the request for an internal review?

The insurer has 30 days from the date the request for an internal review is received to make a decision. If a decision is not made within this time frame the worker may seek a merit review.

Can the insurer refuse to perform an internal review?

No. The insurer must complete an internal review.

How to apply for a merit review?

If the worker is not satisfied with the outcome of the internal review or the insurer has failed to respond within 30 days of receiving the internal review a worker can request a merit review from SIRA.

The worker must complete the work capacity application for merit review by the authority form. A copy of this request for a review must also be submitted to the insurer for their records.

The worker must make the application for merit review within 30 days of receiving the outcome of the internal review or within 30 days of the date at which the insurer should have made a decision on the internal review.

Can SIRA refuse to perform a merit review?

Yes but only if they believe that the application is frivolous or vexatious, the worker refuses to provide any additional information that has been requested or the application is made outside of the 30-day time limit.

Is the insurer bound by the outcome of the merit review?

Yes and the outcome should apply immediately.

How to apply for a procedural review?

If the worker is not satisfied with the decision made by SIRA following the merit review they can seek a procedural review from the Workers Compensation Independent Review Office.

To apply for a procedural review the worker must complete and submit to the Workers Compensation Independent Review Office the WIRO Application for a procedural review form. A copy must also be submitted to the insurer.

The request for a procedural review must be submitted within 30 days of receiving the outcome of the merit review.

The procedural review will only review the procedures used by the insurer to make the work capacity decision and not the merit of the decision.

Can the Workers Compensation Independent Review Office refuse to make a procedural review?

Yes but only if they believe that the application is frivolous or vexatious, the worker refuses to provide any additional information that has been requested or the application is made outside of the 30-day time limit.

Is the insurer bound by the outcome of the procedural review?

Yes and the outcome should apply immediately.