Injured workers can now receive free assistance
As a result of an amendment to the Workers Compensation Regulation (2016) late last year, injured workers can now receive free assistance and advice from legal practitioners if they have been adversely impacted by a work capacity decision. Strict time limits apply to these decisions so it is extremely important that injured workers understand the effects of a work capacity decision and the steps required to have them reviewed.
Workers Compensation Insurers are empowered through s43 of the Workers Compensation Act 1987 (NSW) (“Act”) to make a work capacity decision which can affect or limit an injured worker’s entitlement to weekly compensation. A work capacity decision can take a number of different forms however the most common are:
- A decision relating to an injured worker’s current work capacity;
- A decision concerning what constitutes suitable employment for the worker; and
- A decision about the amount the worker is able to earn in suitable employment.
These decisions have various implications for injured workers who have been certified partially or completely incapacitated for work. In calculating the rate of weekly payments an injured worker is entitled to receive, the Act provides that a deduction should be made for prospective income the worker could earn in suitable employment. If the amount the worker could earn in suitable employment is greater than or equal to their Pre-Injury Average Weekly Earnings, the worker is not entitled to weekly compensation under the relevant provisions of the Act.
If you have been adversely impacted by a work capacity decision, it is imperative that you complete an “Application for Internal Review” within 30 days of the date of the decision. Once you submit this application to the insurer, a “stay” will apply to their decision. This means that the insurer is unable to take action based on the decision and your entitlement to weekly compensation will not be affected whilst the review is taking place.
If the insurer conducts an internal review and upholds their original decision or fails to make a decision within 30 days of your application, you are entitled to make an application to the State Insurance Regulatory Authority’s (“SIRA”) Merit Review Service. It is at this stage that you are able to seek the services of Turner Freeman Lawyers who will provide you with advice at no charge. We will provide you with advice with respect to your entitlements under the Act and also prepare an application for merit review to be lodged with SIRA.
How we can help
At Turner Freeman Lawyers, we specialise in Worker’s Compensation Insurance. If you or someone you know has been adversely impacted by a work capacity decision, we encourage you to call 13 43 63 to speak with one of our accredited Personal Injury specialists today.
Our NSW offices are in Sydney, Parramatta, Newcastle, Penrith, Wollongong and Gloucester.
