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Understanding Work Capacity Decisions

Caution

As a result of far-reaching amendments made to the Workers Compensation Act in 2012, a workers compensation insurer is entitled to issue a Work Capacity Decision in relation to a worker who is receiving weekly payments of compensation.

If a workers compensation insurer issues a Work Capacity Decision, a worker’s weekly payments of compensation can be reduced or stopped altogether and the decision cannot be challenged in the Workers Compensation Commission.

If the workers compensation insurer intends to issue such a decision, prior notice should be provided to the injured person in writing.

Unfortunately, there are only very limited rights of appeal in respect of a Work Capacity Decision. The first step is to ask the insurer for an internal review. If that is not successful, then an application for merit review can be made to the WorkCover Authority within 30 days. A final avenue of appeal to the WorkCover Independent Review Officer is only available where there has been some procedural error made by the insurer. Presently, legal costs cannot be recovered in relation to these appeals, however the NSW Government is currently consulting on an amendment to the Regulation that will open the way for legal representation in these matters, and these amendments should take effect later in the year.

Note:

These provisions do not apply to excluded workers including police officers, paramedics and fire fighters, coal miners, volunteer bushfire fighters, emergency and rescue service volunteers, people with a dust diseases claim under the Workers Compensation (Dust Diseases) Act 1942, workers who are currently receiving weekly payments of compensation as a result of injury under the 1926 Act, or seriously injured workers as defined by the legislation.

 

 


6 steps to making a NSW Workers Compensation claim

Someone filling out work injury claim form

Injured workers receive a lot of information from employers, general practitioners and claims managers when they first report an injury.

For most people, this information can be overwhelming.

We recommend the following steps be taken immediately when a work related injury occurs:-

Step 1 – Report the injury in your employer’s injury book 
If there is no injury book at your workplace, provide your employer with written details of your injury and keep a copy of your written account of the injury. Your injury can be reported by email to your employer.

Step 2 – Complete a notice of injury form and give it to your employer
If you are unable to obtain a notice of injury form go to step 3.

Step 3 – Consult your health care provider
Consult your own general practitioner on the day of injury for a WorkCover NSW – Certificate of Capacity.

We are told by some of our clients that representatives of employers/insurers insist on attending these medical appointments with the worker. There is no obligation on the worker to allow this.

Furthermore, we are told, in some circumstances, that an employer will insist that the injured person attend upon the company doctor for treatment.

You are not obliged to do so and in fact you should attend your own general practitioner for all treatment advice.

Step 4 – Request a workers compensation claim form from your employer

Step 5 – Complete and submit your claim form
Complete the claim form, attach your WorkCover NSW – Certificate of Capacity to that claim form and submit it to your employer.

You should always retain a copy of that completed document for your records.

Step 6 – Don’t provide statements without consulting your lawyer first
You may be approached by an investigator. You are not obliged to provide a statement to an investigator and you should not do so without contacting your lawyer.