Work Capacity Assessments can be conducted by the insurer and may affect your entitlement to weekly compensation payments.
What is a Work Capacity Assessment?
A work capacity assessment is an assessment conducted by the insurer of a worker’s current work capacity in accordance with section 44A of the Workers Compensation Act 1987.
Section 32A of the 1987 Act defines current work capacity in relation to a worker as:
“a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to work in suitable employment.”
A work capacity assessment is a review conducted by the insurer of an injured workers functional, vocational and medical condition to make a decision about the injured workers ability to return to work and or their entitlement to weekly compensation payments.
The Workers Compensation Legislation Amendment Act 2018 imposes requirements on an insurer to conduct regular Work Capacity Assessment.
The WorkCover Work Capacity Guidelines indicate that an insurer may conduct one of these assessments at any stage of the claim at least once every 2 years unless it is agreed that an injured worker suffers from a whole person impairment of 31% WPI or greater.
The insurer when conducting a work capacity assessment will have regards to the following:
- Medical reports from a treating doctors and professionals;
- WorkCover certificates of capacity;
- Independent medical reports;
- injury management consultant reports
- injury management plans
- functional and vocational reports
- any other information the insurer thinks relevant.
The insurer may require the worker to submit themselves to a medical examination arranged by the insurer. Section 44A of the Workers Compensation Act 1987.states that a worker must attend and participate in any evaluation required as part of the assessment.
the worker must be informed of the medical appointment in writing at least 10 days before the appointment. If the worker fails to attend, the insurer may suspend their weekly payments.
Work Capacity Decisions
once an insurer has conducted a work capacity assessment, the insurer will make a work capacity decision about any one of the following points:
- A workers current capacity;
- suitable employment for a worker;
- the amount an injured worker is able to earn in suitable employment;
- the amount the worker is entitled to – weekly earnings;
- suspension of a workers weekly payments;
- reduction of workers weekly payments;
- Any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation.
Prior to making a work capacity decision, the insurer must in writing:
- give the worker at least 2 weeks notice;
- inform the worker that a review of their current work capacity is being undertaken and that a decision is going to be made;
- explain that the review may involve third parties such as the workers treating doctors or their employer;
- advise the worker of the potential outcome;
- give the worker an opportunity to provide further material to be considered in the review decision;
- advise the worker when the decision is expected to be made.
When a work capacity decision is made, the insurer must:
- communicate the decision to the worker either via telephone or in person that a decision has been made and will be provided in writing;
- explain the outcome and consequences of the decision;
- explain the internal review process and that a review application will be provided with a formal notice of the decision;
- the decision must be provided in writing;
- the insurer must provide 3 months notice before reducing or discontinuing the worker’s weekly payments;
What you need to know
The WorkCover Work Capacity Guidelines state:
- All decisions made in relation to the worker’s recovery and work capacity should be timely, informed and evidence based.
- Decisions should be made and communicated in a transparent and robust manner free from preference and prejudice ensuring that effective outcomes are achieved and due process is followed.
- Decisions should be made in line with the Best Practice Decision Making Guide.
- The insurer must use a sound decision-making model that includes appropriate controls and review processes aligned with the General Insurance Code of Practice incorporating a quality assurance and continuous improvement framework.
- Work capacity assessments should be tailored to the worker. This means, the insurer should have an understanding of the worker’s circumstances and their injury ensures the right approach at the right time.
- If the insurer conducts a work capacity assessment and disputes liability for weekly compensation, that is not a work capacity assessment and you should seek legal advice on challenging the decision.
- Prior to 1 January 2019, the workers compensation commission does not have jurisdiction to determine a work capacity dispute.
- As of 1 January 2019, the Workers Compensation Commission can determine a work capacity decision made by the insurer that is not in your favour.’
Review of a Work Capacity Decision
- A worker may seek a review of a Work Capacity Decision in accordance with section 44 of the Workers Compensation Act 1987.
- If you have been advised of work capacity review to take place or a work capacity decision has been made, we recommend that you seek legal advice on the decision made to know how the decision will impact your rights and entitlements.
- Please note there are strict time limitations which apply at the different stages of the review process.
For all your work related legal matters, contact your local Turner Freeman Lawyers office for professional advice.