What is a Work Capacity Decision (WCD)?

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The workers compensation insurer has notified me that a ‘work capacity decision’ has been made on my claim. What does this mean for me and what can I do?

Insurers are required to undertake Work Capacity Decisions to determine whether an Injured Worker is able to return to suitable work. This can impact on your entitlement to ongoing weekly compensation payments.

When making a WCD, the insurer will consider the following:

  1. Your current work capacity – Usually, the insurer will rely on the Certificates of Capacity/Fitness. The insurer can also rely on Independent Medical Examinations when deciding a current work capacity.
  2. What kind of suitable employment you are able to engage in – Usually, the insurer will arrange for you to attend an assessment with a vocational assessor. A vocational assessor will consider your qualifications, training and experience when completing their report, and determine what jobs you can do.
  3. What your Pre-Injury Average Weekly Earnings are and how much you can earn in the suitable employment.

What will happen if a Work Capacity Decision is made on my claim?

If the insurance company makes a WCD on your claim, then one of the following may occur:

  1. There will be no change in your weekly compensation payments – This will occur if the insurer is satisfied that you have no current capacity for work, that the reduced hours/duties you are currently performing represent the extent of your work capacity, or, that there are no suitable duties/ employment available for you; or
  2. A reduction in your weekly compensation payments – This will occur if you are not working, but the insurer believes that you are able to some work. This will may also occur if you are working, but the insurer believes that you can increase your hours/earnings; or
  3. A cessation in your weekly compensation payments – This will occur if the insurer determines that you are able to perform work earning the same or greater than what you were earning at the time of your injury.

When will the insurance company make a WCD?

A WCD can be made at any time throughout the life of the claim, however, WCDs are usually made when you have received almost 130 weeks (2.5 years) of weekly compensation payments.

This is a crucial time in the life of the claim, because the current law states that an Injured Worker is only entitled to receive weekly compensation beyond this period, if they are assessed by the insurer as:

  1. Being totally unfit for work; or
  2. If they are working at least 15 hours per week and earning a minimum of $200.00.

If you do not fit this criterion, then the insurance company may cease your weekly compensation payments once you have received 130 weeks (2.5 years) of weekly compensation payments.

Insurers are not to make WCDs for Workers with Highest Needs (Workers who are assessed as suffering greater than 30% Whole Person Impairment).

How do I challenge a work capacity decision?

There are usually 2 steps in the dispute resolution process. The first is to seek an internal review of the decision from the insurer, and the next step is to refer the matter to the Personal Injury Commission (PIC).

Both of the above steps are technical in nature. Workers benefit from engaging a solicitor who specialises in workers compensation to assist them.

Recent developments in the law have permitted Injured Workers to challenge WCDs through the PIC with the assistance of approved lawyers. The decision of Oliver Roberts v University of Sydney (2021) NSWWCC 25 determined that the PIC does have power to award weekly compensation beyond 130 weeks/2.5 years of incapacity.

Will it cost me to engage a solicitor to help me?

Injured workers who engage solicitors who have been approved by the Independent Review Office (IRO) will not be required to pay legal fees associated with workers compensation disputes. Our approved solicitors at Lionheart Lawyers are able to apply for legal funding from the IRO, and your legal fees will be met by the IRO.

If your weekly benefits have been stopped because of a Work Capacity Decision, or if you have any questions about workers compensation, speak to one of our IRO approved lawyers today on (02) 9299 0112 for an obligation-free assessment of your claim.

Important Disclaimer: The material contained in this publication is of general nature only and is based on the law as of the date of publication. It is not, nor is intended to be legal advice. If you require further information on the content of this publication, please contact our office on 9299 0112.