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Insights

A “Work Capacity Decision” is a decision made by an insurer determining an injured person’s entitlement to weekly payments of compensation. A work capacity decision can be made by an insurer at any point throughout a claim.

A work capacity decision will determine:

  1. The worker’s current work capacity.
  2. What is suitable employment for the worker.
  3. Pre-injury average weekly earnings or current weekly earnings.
  4. Whether the worker can return to work without risk of further injury.
  5. Whether the worker can earn some income from employment which will either end their weekly compensation or end payments altogether.
  6. Any other decision that may impact entitlement to weekly compensation.

For example, the treating doctor might determine that the injured person can work for 3 hours per day for 4 days per week. Following this, the insurer might obtain a vocational assessment which determines whether the injured person can maintain other employment. The insurer will look at whether the worker is suited to ‘suitable employment’.

Suitable employment considers the worker’s incapacity, age, skills, education, or work experience. Importantly, it does not consider whether the employment is available in the employment market, the nature of the worker’s pre-injury employment or the worker’s place of residence.

If the vocational assessment determines that the worker can maintain other employment, then the worker’s weekly payments can reduce or cease.

If a worker refuses to attend an assessment, the insurer may suspend the worker’s right to weekly payments until the assessment has taken place.

There are avenues available to workers who have received a work capacity decision from an insurer. A worker may request an internal review of the decision. The insurer must respond to this request within 14 days. Importantly, however, whether a request for review will be successful will depend on what evidence the work capacity decision was based on.

Usually, to have grounds to dispute a work capacity decision, a worker would at least require supporting medical evidence that contests the insurer’s determination that the worker can work in suitable employment.

If you are not satisfied with the insurer’s decision after the review, an application can be lodged to have the dispute resolved by the Personal Injury Commission.

Should you be an injured worker who has received a Work Capacity Decision, we are able to review and provide legal advice free of charge. This is possible because our legal fees are covered by the Independent Review Office (IRO).