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WorkCover Work Capacity Guidelines

WorkCover Work Capacity Guidelines

Workers Compensation Act 1987

Workplace Injury Management and Workers Compensation Act 1998

I, Julie Newman, the Chief Executive Officer of the WorkCover Authority of New South Wales, under section 376 (1) of the Workplace Injury Management and Workers Compensation Act 1998 and section 44A of the Workers Compensation Act 1987, issue the following guidelines.

Dated this fourth day of October 2013.

Julie Newman PSM
Chief Executive Officer
WorkCover Authority

Work Capacity Guidelines

Instructions and guidance to insurers regarding the appropriate and consistent application of work capacity assessments, decisions and reviews.

These Guidelines come into effect on 11 October 2013.

1. Introduction

In June 2012 the Government introduced changes to the NSW worker’s compensation system. The changes are focussed on encouraging and assisting injured workers to stay at work as part of their rehabilitation wherever possible, or to support their safe return to employment. The changes also reduce the impact of injury on workers and their families. The changes provide better financial support for seriously injured workers and assist employers to meet their return to work commitments. The concept of a work capacity assessment was introduced as an important part of return to work planning and determination of entitlement to weekly payments.

These changes were introduced in the Workers Compensation Legislation Amendment Act 2012 (referred to as ‘the 2012 Amendment Act’) passed by Parliament on 22 June 2012 and assented on 27 June 2012. The 2012 Amendment Act amended the Workers Compensation Act 1987 (referred to as ‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (referred to as ‘the 1998 Act’).

1.1. Purpose

This document provides instructions and guidance to insurers regarding the appropriate and consistent application of work capacity assessments and decisions in the NSW workers compensation system. It also explains the process for the review of work capacity decisions when this is requested by a worker, including matters concerning the following specific sections of the 1987 Act:

  • Section 38 Special requirements for continuation of weekly payments after second entitlement period (after 130 weeks)
  • Section 43 Work capacity decisions by insurers
  • Section 44 Review of work capacity decisions
  • Section 44A Work capacity assessment
  • Section 44B Evidence as to work capacity

The work capacity assessments provisions do not apply to those workers whose claims are excluded, including police officers, paramedics and fire-fighters, people injured working in or around coal mines, volunteer bush fire fighters, emergency and rescue service volunteers, people with a dust disease claim under the Workers Compensation (Dust Diseases) Act 1942, or workers who currently receive weekly payments as a result of an injury under the 1926 Act. Seriously injured workers, as defined by section 32A of the 1987 Act are not required to undergo a work capacity assessment unless the worker requests it and the insurer considers such an assessment appropriate.

These guidance materials and instructions apply to all claims from the date they are published in the NSW Government Gazette.

1.2. Legislative framework

These guidance materials and instructions are to be read in conjunction with, and in light of, the legislative framework governing work capacity certificates, assessments, decisions and reviews as contained in the relevant legislation and delegated legislation including

  • the 1987 Act
  • the 1998 Act
  • the Workers Compensation Regulation 2010 (referred to as ‘the Regulation’ )
  • Guidelines for work capacity decision internal reviews by insurers and merit reviews by the Authority (referred to as ‘the Review Guidelines’) as gazetted.

Graphic of a four tiered pyramid showing the legislative framework in a hierarchy of legislation, guides and instructions. At the top of the pyramid are the Workers Compensation Act 1987 and the Workplace injury Management and Workers Compensation Act 1988. The second level of the pyramid is the Workers Compensation Regulation 2010. The third level of the pyramid is the Review Guidelines. The bottom level of the pyramid is the Work Capacity Guidance Material and Instructions which includes this document and its attachments.

2. Guiding principles

2.1. A focus on facilitating the worker’s capacity for work

Work promotes recovery, reduces the risk of long-term disability and loss of employment, and improves quality of life and wellbeing. An integrated and multi-disciplinary approach to injury management supports the worker to stay at work as part of their rehabilitation wherever possible, and participate in opportunities to improve their capacity for employment.

It is essential that all relevant parties work together. Early development of clear return to work goals, the injury management plan, and regular reviews of the plan are important elements to support the worker’s rehabilitation.

2.2. Effective communication throughout the life of the claim

Transparent and effective communication from notification of an injury onwards can help to set clear expectations regarding the roles and responsibilities of the worker, insurer, employer and medical and other service providers.

The implementation of this claims management approach and any associated decisions must include plain language communication and be considerate of the worker’s and employer’s primary language, cultural background and literacy skills.

Communication issues and difficulties should be promptly addressed to ensure expectations are aligned and to minimise the risk of disputes.

2.3. Soundly based decisions

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.

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.

When making internal review decisions and notifying workers of those decisions, any requirements established by the 1987 Act and the Review Guidelines must also be satisfied.

2.4. A tailored approach

Work capacity assessments should be tailored to the worker. An understanding of the worker’s circumstances and their injury ensures the right approach at the right time.

3. WorkCover NSW Certificate of Capacity

(1987 Act: S.44B)

From 1 October 2012, the WorkCover NSW Certificate of Capacity (catalogue no. WC01300) replaces the WorkCover medical certificate as the primary tool for the nominated treating doctor or treating specialist to communicate with all parties involved in the return to work process.

The certificate of capacity is attached at section 8.1

The nominated treating doctor or treating specialist is responsible for completing the certificate of capacity. The Information for medical practitioners completing the WorkCover NSW Certificate of Capacity provides further detail regarding the certificate.

The certificate of capacity is one of the many sources of information used to help inform a tailored approach to injury management and return to work planning for each worker.

The worker is responsible for providing a completed certificate of capacity to the employer and the insurer to be eligible for weekly payments.

4. Work capacity assessment

(1987 Act: S.32A, S.44A)

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 1987 Act.

current work capacity, in relation to a worker, is defined in section 32A of the 1987 Act 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 return to work in suitable employment.”

A work capacity assessment undertaken by the insurer is a review of the worker’s functional, vocational and medical status and helps to inform decisions by the insurer about the worker’s ability to return to work in his or her pre-injury employment or suitable employment with the pre-injury employer, or at another place of employment.

The insurer may conduct a work capacity assessment at any stage throughout the life of a claim. This can be an ongoing process of assessment and reassessment that commences on notification of a workplace injury and continues as needed during the life of the claim.

suitable employment, in relation to a worker, is defined in section 32A of the 1987 Act as:

“employment in work for which the worker is currently suited:

  1. having regard to:
    1. the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
    2. the worker’s age, education, skills and work experience, and
    3. any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
    4. any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
  2. regardless of
    1. whether the work or employment is available, and
    2. whether the work or the employment is of a type or nature that is generally available in the employment market, and
    3. the nature of the worker’s pre-injury employment, and
    4. the worker’s place of residence”

A work capacity assessment considers all available information which may include, but is not limited to:

  • reports from the treating doctor, treating specialist or other allied health professionals
  • WorkCover NSW Certificate of Capacity
  • independent medical reports
  • injury management consultant reports
  • the worker’s self report of their abilities and any other information from the worker
  • the injury management plan
  • reports from a workplace rehabilitation provider such as workplace assessment reports, return to work plans, functional capacity evaluation reports, vocational assessment report, work trial documents, job seeking logs, activities of daily living assessments, etc
  • information from the employer such as documents relating to return to work planning
  • information obtained and documented on the insurer’s claim file.

4.1. Evaluation appointments

Referrals to a medical practitioner, workplace rehabilitation provider or other relevant party for an evaluation may be needed as part of the assessment if the information on the claim file is incomplete. This information from third party service providers will then form part of the body of evidence considered in the insurer’s work capacity assessment.

As provided by section 44A of the 1987 Act, the worker must attend and participate in any evaluation required as part of the work capacity assessment.

The worker is to be advised of the details of any evaluation appointment(s) in writing at least 10 working days before the appointment, unless a shorter time is required because of exceptional and unavoidable circumstances and agreed to by the parties. The notice that the worker is required to attend an evaluation should also inform the worker that failure to attend or properly participate in an evaluation appointment may result in suspension of weekly payments until the evaluation has taken place.

If a worker has a reasonable excuse for not attending and participating in an evaluation, the suspension of weekly payments should be delayed pending attendance at a subsequent appointment. Whether or not a worker has a reasonable excuse would need to be determined on a case by case basis - relevant factors could include any previous failure(s) to attend and properly participate in an evaluation appointment.

Where a worker has provided a reasonable excuse for not attending and participating in an evaluation, a notice should be sent to the worker advising of the new evaluation and warning that failure to attend and to properly participate will result in the suspension of weekly payments.

Where it is reported that the worker has not properly participated in the evaluation, suspension should be delayed pending the sending of a notice to the worker requiring attendance at a further assessment and providing a warning that any further failure to properly participate will result in immediate suspension of weekly payments.

4.2. Timing of a work capacity assessment

A work capacity assessment may be conducted at any stage throughout the life of a claim.

At a minimum, the insurer must commence a review of the worker’s capacity for work once the worker has received a cumulative total of 78 weeks of weekly payments.

If a worker has an ongoing entitlement to weekly payments beyond 130 weeks, the insurer must conduct a work capacity assessment at least once every two years after this point, until such time as the worker’s entitlement ceases.

4.3. Work capacity assessments and seriously injured workers

Work capacity assessments must not be conducted for a seriously injured worker unless the worker requests it. If a seriously injured worker requests an assessment for example, to assist with return to work planning, the insurer must decide whether or not it is appropriate considering the worker’s circumstances.

Section 32A of the 1987 Act defines a seriously injured worker as

a worker whose injury has resulted in permanent impairment and:

a. the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or

b. the degree of permanent impairment has not been assessed because an approved medical specialist has declined to make an assessment until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable, or

c. the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”

5. Work capacity decision

(1987 Act: S.43)

A work capacity decision is a specific type of decision by the insurer which is defined in section 43 of the 1987 Act.

Work capacity decisions by insurers are decisions defined in section 43 of the 1987 Act as:

“a.  a decision about a worker’s current work capacity,

b.  a decision about what constitutes suitable employment for a worker,

c.  a decision about the amount an injured worker is able to earn in suitable employment,

d.  a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,

e.  a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,

f.  any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).

The following are not work capacity decisions:

a.  a decision to dispute liability for weekly payments of compensation, 

b.  a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act”

A work capacity decision is a discrete decision that may be made at any point in time and can be about any one of the factors described in section 43(1), such as the worker’s capacity to earn in suitable employment. This is different to a work capacity assessment which is a review process that may or may not lead to the making of a work capacity decision or another type of decision regarding a claim.

5.1. Making a work capacity decision

Work capacity decisions will be made at many points throughout the life of a claim.

For a worker who is an existing recipient of weekly payments, a work capacity decision is to be made as soon as practicable after the first work capacity assessment of the worker is conducted by the insurer (Clause 23, Schedule 8, of the Regulation).

The insurer may make a work capacity decision on receipt of new information that relates to the worker’s capacity for employment which may affect the calculation of weekly payments. Such information may include, but is not limited to:

  • evidence of the worker’s pre-injury wages or current wages
  • WorkCover NSW Certificate of Capacity
  • a change in the worker’s personal circumstances
  • confirmation that the worker has returned to work
  • confirmation that the worker has become unable to work at all, or as much as they had been
  • a report from a medical practitioner or allied health practitioner
  • a workplace rehabilitation report
  • an investigation report.

When making a work capacity decision the insurer’s approach should:

  • ensure that all reasonable opportunities to establish capacity for work have been provided to the worker
  • ensure that the insurer meets their responsibility of establishing and supporting an injury management plan tailored to the worker’s injury as set out in Chapter 3 of the 1998 Act
  • evaluate all available and relevant material and relevant considerations
  • have regard to the particular facts and circumstances of the worker
  • follow a robust and transparent decision-making process with clear, concise and understandable information provided to the worker giving reasons for decisions
  • seek any additional information that is required to ensure the worker’s current capacity for work is fully understood
  • provide opportunity for the worker to contribute additional information, especially if the decision may result in reduction or discontinuation of the worker’s weekly payments
  • ensure decision makers have the appropriate expertise, ability, and support to make the decision they are making.

Any work capacity decision should be logical, rational and reasonable. It should be a decision that is more likely than not to be correct. In many cases the insurer will already have all the information they need to make a work capacity decision without the need to refer the worker for additional evaluations by third party service providers.

Example: The worker is recovering from recent surgery. The WorkCover NSW Certificate of Capacity and report from the treating specialist indicates the worker has no current work capacity. A work capacity decision can be made based on this information probably without the need for any further evidence.

Example: The worker has returned to work in their full pre-injury role. It is confirmed that the worker is in receipt of their pre-injury average weekly earnings. A work capacity decision can be made based on this information probably without the need for any further evidence.

Example: The worker has returned to suitable employment, working reduced hours. Information has been received from the worker’s physiotherapist and nominated treating doctor indicating that the worker has capacity for full pre-injury hours. The insurer can make a work capacity decision about the amount the worker is able to earn in this suitable employment, working full hours, probably without the need for any further evidence.

Where an employer terminates the worker’s employment because of the injury or removes the suitable employment for the worker, the factor ‘E’ for the purpose of calculating weekly entitlements is to be $0 while a work capacity assessment of alternative suitable employment options is undertaken and until a work capacity decision occurs that demonstrates the suitable employment that the worker is suited to in the open labour market.

5.2. Fair notice provisions

Before making a work capacity decision that may result in a reduction or discontinuation of the worker’s weekly payments the insurer must, at least two weeks prior to the work capacity decision, communicate this to the worker in a way that is appropriate in the circumstances of the case, and preferably by telephone or in person. This must be done to:

  • inform the worker that a review of their current work capacity is being undertaken and that a work capacity decision is going to be made
  • explain that this review may include further discussions with other parties such as their employer, nominated treating doctor or other treatment providers
  • advise the potential outcome of this review and detail the information that has led the insurer to their current position
  • provide an opportunity for the worker to supply any further information to the insurer for further consideration and the date that this information is to be provided by
  • tell the worker when this decision is expected to be made.

This information should also then be confirmed in writing to the worker. The written confirmation should be sent by post or served personally. If the worker has provided information to facilitate electronic communication, the information may also be sent to the worker by electronic means in addition to sending the information by post.

This requirement does not apply to a reduction or discontinuation in weekly payments that is due to the application of different rates as defined in the legislation (section 36, section 37, and section 38 of the 1987 Act) or changes as a result of the indexation of benefits.

5.3. Notifying a worker of the outcome of a work capacity decision

The insurer must notify the worker in writing of a work capacity decision.

Upon making a work capacity decision that will result in a reduction or discontinuation of the worker’s weekly payments the insurer will, where possible, communicate this to the worker by telephone or in person, to:

  • inform the worker that a work capacity decision has been made
  • explain the outcome and consequences of this decision and the information that has led the insurer to their current position
  • explain the internal review process and that a review application will be sent with a formal notice
  • confirm that the decision will be conveyed in writing.

The insurer must then give notice in writing of the reduction or discontinuation of weekly payments in accordance with section 54 of the 1987 Act and any requirement of the Review Guidelines.

Reduction or discontinuation of weekly payments

As required by section 54 of the 1987 Act, where the work capacity decision reduces or discontinues weekly payments, correspondence advising the required period of notice must be sent by post or served personally. If the worker has provided information to facilitate electronic communication, the information may also be sent to the worker by electronic means in addition to sending the information by post. Section 5.3.2 of these Guidelines sets out the requirements for this notice.

Increases in weekly payments to existing recipient of weekly payments

As required by Clause 21, Schedule 8 of the Regulation, where the work capacity decision increases weekly payments for an existing recipient of weekly payments, correspondence advising the required period of notice should be sent by post or served personally. If the worker has provided information to facilitate electronic communication, the information may also be sent to the worker by electronic means in addition to sending the information by post. Section 5.3.2 of these Guidelines sets out the requirements for this notice.

The insurer must provide 3 months notice before increasing the weekly payments of an existing recipient of weekly payments.

Example: The worker returns to work full time and is receiving their pre-injury average weekly earnings. The insurer confirms this with the worker and the employer. The insurer makes a work capacity decision that the worker’s weekly payments are to be discontinued.

  • The insurer should notify the worker their weekly payments will cease as there is no loss of income however a work capacity decision advice is not required. No notice period applies.

Example: The worker is currently receiving weekly benefits and has done so for over a year, and a new WorkCover NSW Certificate of Capacity finds they have no current work capacity. The insurer undertakes a work capacity assessment and the insurer then makes a work capacity decision that the worker has current work capacity. This decision will result in a reduction or discontinuation of the worker’s weekly payments.

  • Formal notification of this work capacity decision is required under section 54 of the 1987 Act. The insurer must provide a 3 month notice period before reducing or discontinuing benefits under section 54(2)(a). As the notice can be provided by post the postal rule under section 76(1)(b) of the Interpretation Act 1987 is invoked, meaning the insurer must provide the worker with an additional 4 days notice after the date the notice has been posted.
  • This notification must be made in accordance with this guideline at 5.3.2 Requirements of written advice of a work capacity decision and its outcome .

Example: The worker has now received a cumulative total of 13 weeks of weekly payments. The worker has no capacity for work. The insurer decides that the amount of weekly payments the worker is entitled to receive is to be reduced due to the application of a different rate of payment (that is, the weekly payments are now calculated under section 37 of the 1987 Act, rather than section 36).

  • The insurer should notify the worker of the change in their rate of payment and how it was calculated however a work capacity decision advice is not required. No notice period applies.

A reduction or discontinuation in weekly payments due to information supplied by the worker does not require formal notification by the insurer.

5.3.1. Standards for communicating a work capacity decision

The insurer must provide the worker and other relevant parties with plain language communication regarding the work capacity decision.

Plain language communication requires:

  • being considerate of the nature of the worker’s circumstances
  • communicating respectfully
  • communicating a clear message
  • presenting concise information
  • adapting communication style to meet the worker’s needs.

Insurers must make reasonable efforts to communicate work capacity decisions that affect the amount of weekly payments a worker is entitled to receive, in an appropriate way, preferably by telephone or in person as well as in writing. If needed, an accredited interpreter should be engaged to assist in giving effective communication.

Other forms of communication such as face-to-face meetings, facsimile and emails may also form part of the communication of the work capacity decision as appropriate.

In some cases, it may be appropriate to communicate a work capacity decision in the presence of the nominated treating doctor or other relevant health care professional. For example, when communicating a decision to reduce or discontinue weekly payments for a worker with a psychological injury.

Effective communication will help to minimise the risk of disputes.

5.3.2. Requirements of written advice of a work capacity decision and its outcome

The written work capacity decision advice must comply with any requirements of the 1987 Act and Review Guidelines and:

  • reference the relevant legislation
  • explain the relevant entitlement periods
  • state the decision and give brief reasons for making the decision
  • outline the evidence considered in making the decision, noting the author, the date and any key information. All evidence considered should be referred to, regardless of whether or not it supports the decision.
  • clearly explain the line of reasoning for the decision
  • state the impact of the decision on the worker in terms of their entitlement to weekly payments, entitlement to medical and related treatment expenses and return to work obligations
  • advise of the relevant legislative notice requirements applicable to the decision
  • advise the date of the work capacity assessment
  • advise the date when the decision will take effect
  • detail any support, such as job seeking support, which will continue to be provided during the notice period
  • advise that any documents or information that have not already been provided to the worker can be provided to the worker on request to the insurer
  • advise of the process available for requesting review of the decision and how to access the required form, Work capacity - application for internal review by insurer (catalogue no. WC03304)

The outcome of an internal review of a work capacity decision must be communicated by the insurer to the worker in the same way as any work capacity decision (see 7.2.7 of this guidance material).

5.3.3. Non adverse Work Capacity Decision

Where the insurer has given the worker fair notice (as required under clause 5.2) of an impending work capacity decision and the result of the work capacity decision is either no change or an increase in weekly payments, then the insurer must advise the worker in writing of this decision in the approved form, see clause 8.5.

Where the insurer has not given the worker fair notice (clause 5.2) of an impending work capacity decision and the result of the work capacity decision is no change or an increase in weekly payments, then the fair notice provisions (clause 5.2) do not apply.

5.4. Flow chart - making a soundly based work capacity decision

 Step one: Identify the need for a work capacity decision (see section 5.1). Step two: Identify the type of work capacity decision that needs to be made. Step three: In light of the particular circumstances of the claim, consider the relevant and available information. Is there enough information to make a logical, rational and reasonable work capacity decision? If the answer to step three is no, then there is an additional step (step four) to obtain additional information via consultation or third party assessments. Step five: When step four is complete or the answer to step three is yes,  then assess all available and relevant information as a whole. Step six: Make a preliminary decision and determine the likely impact of this decision on the worker. Is the preliminary decision an adverse decision? That is, will the outcome of this decision result in a reduction or discontinuation of the worker’s weekly payments? If the answer to step six is yes, then there is additional step (step seven) to advise the worker of the preliminary decision and the likely impact of this decision. Provide opportunity for the worker to submit additional information for consideration. There is a note to allow a minimum of two weeks after preliminary decision before making final work capacity decision. Step eight: If the answer to step seven is yes or the answer to step six is no, make the work capacity decision based on all the information available, including any additional information that has been submitted by the worker. Step nine: Advise the worker of the decision and the impact of this decision. If this is an adverse decision, provide written advice of a work capacity decision and comply with the legislative notice requirements before reducing or discontinuing the worker’s weekly payments.

6. Delivery of documents

Delivery to an address for service is taken to have been received at the following times:

  • in the case of a physical address, on the day the document is left at that address;
  • in the case of a postal address, on a day 4 days after the document is posted;

In addition to delivering documents by person or mail, documents can also be emailed but this is in addition to delivering documents in person or by mail.

7. Reviews of work capacity decisions

(1987 Act: S.44)

A worker may refer a work capacity decision by an insurer for an internal review by the insurer, and afterwards for a merits review of the decision by the WorkCover Authority and afterwards for a review of the insurer’s procedures to the WorkCover Independent Review Officer.

7.1. Internal review by insurers of work capacity decisions

(1987 Act: S.44)

(Review Guidelines: 2.5 to 2.7)

The ability for a worker to seek an internal review of a work capacity decision by an insurer is provided for in section 44 of the 1987 Act, and the rules and requirements applying to such reviews are further detailed in the Review Guidelines, which are delegated legislation.

7.1.1. Application by a worker to an insurer for an internal review of a work capacity decision

(1987 Act: S.44(2))

(Review Guidelines: 2.6.1 to 2.6.4)

A worker may refer a work capacity decision for an internal review by the insurer. The insurer should have given the worker the application form with the written advice of the work capacity decision.

The worker may be assisted in completing the application form by another person such as the insurer, a support person, agent, union representative, employer, legal representative or interpreter. In accordance with section 44(6) of the 1987 Act, a legal practitioner is not entitled to be paid for costs incurred in connection with a review of a work capacity decision.

Workers may obtain information on work capacity decision and review processes from the WorkCover Customer Service Centre on 13 10 50.

7.1.2. Timely lodgement

(1987 Act: S.44(4))

(Review Guidelines: 2.6.5 to 2.6.6)

If a worker wishes to refer a work capacity decision for an internal review, they should lodge a completed Work capacity -application for internal review by insurer form with the insurer as soon as practicable after receiving the work capacity decision from the insurer. A work capacity decision is not stayed by any review process relating to that decision.

The Work capacity - application for internal review by insurer form is attached to this guideline at section 8.2. The application must be in the approved form, specify the grounds on which the review is being sought and any additional information to be considered. (For example, the worker is able to supply further medical information or the worker believes that the suitable employment identified places them at substantial risk of further injury.)

7.1.3. Multiple work capacity decisions or claims

(Review Guidelines: 2.6.10 to 2.6.11)

In one Application, a worker may refer for internal review more than one work capacity decision about one or more of the worker’s related claims managed by the same insurer.

The insurer will determine whether or not those internal reviews are most appropriately conducted together or separately as is appropriate in the circumstances of each particular case.

7.1.4. Acknowledgement of application

(Review Guidelines: 2.7.1)

The insurer must acknowledge the referral in writing to the worker within 7 days of receiving the application and:

  • explain the review process
  • advise that a review of a work capacity decision does not operate to stay the decision or otherwise prevent the taking of action based on the decision
  • clarify with the worker any new information supplied or any other information that the worker is in the process of obtaining
  • indicate when and how the decision will be conveyed to the worker.
7.1.5. Non-review of applications

(Review Guidelines: 2.6.7 to 2.6.9)

An insurer may decline to review a decision at any stage of the internal review process if an application is not in the approved form or fails to contain sufficient information.

If an insurer declines to conduct an internal review for any reason or fails to conduct the review within 30 days of receiving the application (the prescribed period), the decision by the insurer to decline the application or its failure to conduct the review within the prescribed period exhausts the internal review process by the insurer, and the worker may then apply for Merit Review by WorkCover.

Where an insurer declines to conduct an internal review for any reason or fails to conduct the review within the prescribed period, the insurer must give notice in writing to the worker of the reasons for that action. The notice must include a statement advising the worker that he or she may apply to the Authority for review of the insurer’s actions. The notice must also include the necessary contact details to enable the worker to apply to the Authority for merit review and must state the time limits applying to merit review applications to the Authority.

Any application by a worker for review of an insurer’s decision to decline (or the insurer’s failure to conduct) an internal review application must be made within 30 days of the date of the notice given by the insurer to the worker, or where no notice has been given, within 30 days of the date that the insurer’s internal review decision was due.

7.1.6. Internal reviewer and decision

(Review Guidelines: 2.7.2 to 2.7.5)

The internal reviewer is to undertake the review of the work capacity decision in accordance with the insurer’s complaints and disputes handling model including at a minimum:

  • the review of the work capacity decision is to be undertaken by a party independent to the original work capacity decision
  • the review of the work capacity decision is to be conducted by someone with a comprehensive knowledge of the legislation as it applies to the work capacity decision referred and the issues arising from it, and has the appropriate expertise and authority for the decision they are making
  • the reviewer is to undertake a full consideration of the subject of the work capacity decision considering all available information and making a fresh work capacity decision
  • the reviewer has an obligation to make a decision they think is more likely than not to be correct.
7.1.7. Notice of the internal review decision within 30 days

(1987 Act: S.44(1)(a))

(Review Guidelines: 2.7.6)

The insurer must write to the worker within 30 days of receiving the application advising of the outcome of the internal review and if the insurer fails to do so the worker may then make an application for merit review by the Authority.

The insurer must notify the worker of the outcome of the internal review in accordance with:

  • 5.3.2. of this guidance material;
  • section 54 of the 1987 Act if the result of the internal review is to reduce or cease weekly payment; and
  • the Review Guidelines.
7.1.8. Notice must be in the form approved by the Authority

(1987 Act: S.44(3)(a))

(Review Guidelines: 2.7.7)

The notification must be in writing and must include the decision, its impacts and reasons. The notification must also advise the worker about the availability of further review options.

The form, Work capacity – notice of the decision of the insurer following an internal review of a work capacity decision, is attached to this guideline at 8.5.

7.1.9. Outcomes of internal review

(Review Guidelines: 2.7.8)

The internal review decision does not replace the original work capacity decision by the insurer, which is not stayed by any review process, under section 44(4) of the 1987 Act. The internal review decision is a new decision by the insurer, which must take effect independently of the original decision.

The new decision may be the same as the original decision or it may be different.

If the review decision is the same, it could be based on the same reasons applied to the same information as the original decision maker’s decision, or it may be the same despite being made based on different reasons or new information.

If the review decision is different, it could be based on different reasons applied to the same information as the original decision maker had, or it may be based on different reasons or based on new information the original decision maker did not have.

7.1.10. Legislative notice requirements apply to new decisions

(Review Guidelines: 2.7.9)

If as a result of the internal review the insurer makes a new work capacity decision, any relevant legislative notice requirements applicable to that new work capacity decision must be complied with by the insurer before they have effect, including the requirements of:

  • Section 54 of the 1987 Act regarding ‘Notice required before termination or reduction of payment of weekly compensation’. As section 54(4) of the 1987 Act requires the insurer to give notice personally or by post, the postal service rule is automatically invoked. The postal service rule (Section 76(1)(b) of the Interpretation Act 1987) requires an additional 4 working days notice to be provided after the notice was posted; and
  • Clause 21, Schedule 8 of the Regulation regarding ‘Notice of increase in weekly payments of compensation’ for ‘existing recipients of weekly payments’, that is an injured worker in receipt of weekly payments immediately prior to 1 October 2012.

7.2. Merit review by the Authority

(1987 Act: S.44)

( Review Guidelines: 3.8 to 3.10)

If the worker is not satisfied with the outcome of the insurer’s internal review of a work capacity decision, or if an internal review by the insurer is not completed within 30 days, the worker may lodge an application for a further review by the WorkCover Authority.

7.2.1. Application by a worker to the Authority for merit review

(1987 Act: S.44(1)(b), S.44(2), S.44(3)(a) and (b))

(Review Guidelines: 3.9.1 to 3.9.20)

A worker may be assisted in completing the application form by another person such as the insurer, a support person, agent, union representative, employer, legal representative or interpreter.

The application by the worker must be made within 30 days of either receiving the insurer’s internal review decision or the date when the insurer’s internal review decision was due.

In one Application, a worker may refer for merit review more than one work capacity decision about one or more of the worker’s claims, whether or not they are managed by the same insurer, however the time limit requirements must be met for each decision.

The worker must send the insurer a copy of the application before, or at the same time, as lodging the application with the Authority.

The worker does not need to attach to their application all of the existing documents and information relating to the claim or the work capacity decision, as the insurer will be required to provide all relevant information to the Authority as part of their Reply to the application.

The Authority will write to the worker and insurer within 7 days of receiving the application from the worker to acknowledge receipt of the application.

7.2.2. Reply by insurer to a merit review application

(Review Guidelines: 3.9.21 to 3.9.24)

On receiving the worker’s application, the insurer is to exchange and lodge a Reply to an Application in the approved form (attached at section 8.3) as quickly as possible and preferably within 7 days of receiving the application.

The insurer must send the Reply to the worker before, or at the same time, as lodging the reply with the Authority.

The Reply lodged with the Authority must be submitted electronically via email and must include:

  • a list of all documents relevant to the work capacity decision and the Review of that decision, including documents supplied by the worker;
  • attach electronic copies of all of the documents included in the list of relevant documents, including documents supplied by the worker.

The Reply sent to the worker must include:

  • the list of all relevant documents, but;
  • does not need to attach copies of all the relevant documents being lodged with the reply, as the insurer should only attach any documents which have not already been provided to the worker previously.

Any surveillance images lodged with the Authority are to be provided in DVD format and must first be provided to the worker with any investigator’s report. If surveillance images are provided to a worker for the first time in support of a Reply, the worker will be offered an opportunity to respond to the surveillance images.

The Authority will write to the worker and insurer as soon as practicable and preferably within 7 days of receiving the Reply from the insurer.

7.2.3. Merit review findings by the Authority

(1987 Act: S.44(3)(c),(d),(e),(g))

(Review Guidelines: 3.10)

The Authority’s merit reviewer may require additional information from the worker or the insurer for the purposes of the review, which the worker and insurer must provide.

The merit reviewer will consider all of the material substantively and on its merits as if the original work capacity decision had not been made, and is obliged to make the decision that they think is more likely than not to be correct.

The merit reviewer may also make recommendations to the insurer based on their findings, which are binding on the insurer and must be given effect to by the insurer.

The Authority must write to the worker and insurer as soon as practicable and preferably within 30 days of receiving the application advising of the outcome of the merit review and must include the decision, its impacts, any recommendations and reasons. The notification must also advise the worker about the availability of further review options.

The merit review findings and any recommendations to the insurer based on those findings do not replace the original work capacity decision by the insurer, which is not stayed by any review process under section 44(4) of the 1987 Act, and do not replace any internal review decision by the insurer.

Recommendations made by the Authority are however binding on the insurer and must be given effect to by the insurer, independently of the original work capacity decision and any internal review decision.

If as a result of any recommendations to the insurer by the Authority, the Insurer makes a new work capacity decision, any relevant legislative notice requirements applicable to that new work capacity decision must be complied with by the insurer before they have effect, including the requirements of:

  • Section 54 of the 1987 Act regarding ‘Notice required before termination or reduction of payment of weekly compensation’. As section 54(4) of the 1987 Act requires the insurer to give notice personally or by post, the postal service rule is automatically invoked. The postal service rule (Section 76(1)(b) of the Interpretation Act 1987) requires an additional 4 working days notice to be provided after the notice was posted; and
  • Clause 21, Schedule 8 of the Regulation regarding ‘Notice of increase in weekly payments of compensation’ for ‘existing recipients of weekly payments’, that is an injured worker in receipt of weekly payments immediately prior to 1 October 2012.

7.3. Procedural review by WorkCover Independent Review Officer

(1987 Act: s.44(1)(c), s.44(2), s.44(3)(a), (c), (d), (f) and (h))

If the WorkCover review does not resolve the issue, the worker may lodge an application for review with the WorkCover Independent Review Officer (WIRO) within 30 days of receiving the WorkCover review decision.

The WIRO review is a review only of the insurer’s procedures in making the work capacity decision, not of any judgment or discretion exercised by the insurer in making the decision. Recommendations made by the WIRO are binding on the insurer and the Authority.

If as a result of any recommendations to the insurer by the WIRO, the insurer makes a new work capacity decision, any relevant legislative notice requirements applicable to that new work capacity decision must be complied with by the insurer before they have effect, including the requirements of:

  • Section 54 of the 1987 Act regarding ‘Notice required before termination or reduction of payment of weekly compensation’, including the requirements of section 76(1)(b) of the Interpretation Act 1987 known as the postal rule; and
  • Clause 21, Schedule 8 of the Regulation regarding ‘Notice of increase in weekly payments of compensation’ regarding ‘existing recipients of weekly payments’ as defined in Clause 1, Division 2, Part 19H, Schedule 6 of the 1987 Act.

8. Approved forms

Attached to this document are the following notices and forms approved by the Authority

8.1 WorkCover NSW Certificate of Capacity (catalogue no. WC01300)

This is the ‘form approved by the Authority’ referred to in section 44B(3)(a) of the 1987 Act for the certificate of capacity to be given by a medical practitioner.

This certificate includes within it the declaration by a worker which is the ‘form approved by the Authority’ referred to in section 44B(1)(b) of the 1987 Act.

8.2 Work capacity - application for internal review by insurer (catalogue no. WC03304)

This is the ‘form approved by the Authority’ referred to in section 44(2) of the 1987 Act for applications by a worker under section 44(1)(a) to an insurer for internal review of a work capacity decision by the insurer.

8.3 Work capacity - application for merit review by the Authority (catalogue no. WC03305)

This is the ‘form approved by the Authority’ referred to in section 44(2) of the 1987 Act for applications by a worker under section 44(1)(b) to the Authority for a merit review of a work capacity decision by an insurer.

This is also the ‘form approved by the Authority’ referred to in section 44(2) of the 1987 Act for the worker to notify the insurer of an application by a worker under section 44(1)(b) to the Authority for a merit review of a work capacity decision by an insurer.

8.4 Work capacity - reply to an application for merit review by the Authority (catalogue no. WC03306)

This is a form approved by the Authority for an insurer to lodge a reply to an application by a worker under section 44(1)(b) to the Authority for a merit review of a work capacity decision by the insurer.

8.5 Work capacity – notice of the decision of the insurer following an internal review of a work capacity decision (catalogue no.WC01126)

This is a form, approved by the Authority, for an insurer to notify the worker of the insurer’s decision following an internal review of a work capacity decision.

9. Model Litigant Policy

Insurers acting on behalf of the Nominal Insurer are required to abide by the model litigant policy as outlined in Operational Instruction 4.4. Operational Instruction 4.4 can be found at http://www.workcover.nsw.gov.au/formspublications/publications/pages/44litigationpolicyoperationalinstruction.aspx.

The obligation to act as a model litigant may require more than merely acting honestly, and in accordance with the Law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially, it requires that the Nominal Insurer act with complete propriety, fairly and in accordance with the highest professional standards.

10. Glossary

current work capacity, in relation to a worker, is defined in section 32A of the 1987 Act:

means 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 return to work in suitable employment”

days

a reference to a number of days means the number of calendar days unless otherwise stated

injury management is defined in section 42 of the 1998 Act:

means the process that comprises activities and procedures that are undertaken or established for the purpose of achieving a timely, safe and durable return to work for workers following workplace injuries.”

injury management plan is defined in section 42 of the 1998 Act:

means a plan for co-ordinating and managing those aspects of injury management that concern the treatment, rehabilitation and retraining of an injured worker, for the purpose of achieving a timely, safe and durable return to work for the worker. An injury management plan can provide for the treatment, rehabilitation and retraining to be given or provided to the injured worker.”

injury management program is defined in section 42 of the 1998 Act:

means a co-ordinated and managed program that integrates all aspects of injury management (including treatment, rehabilitation, retraining, claims management and employment management practices) for the purpose of achieving optimum results in terms of a timely, safe and durable return to work for injured workers.”

insurer is defined in section 42 of the 1998 Act:

means a licensed insurer, specialised insurer or self-insurer.”

medical practitioner

means a person registered under the Health Practitioner Regulation National Law (NSW) No. 86a in the medical profession who is not a Specialist Surgeon.

month

means a period commencing at the beginning of a day of one of the 12 named months and ending:

  1. immediately before the beginning of the corresponding day of the next named month, or
  2. if there is no such corresponding day, at the end of the next named month.”

no current work capacity, in relation to a worker, is defined in section 32A of the 1987 Act:

means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”

nominated treating doctor is defined in section 42 of the 1998 Act:

means the treating doctor nominated from time to time by a worker for the purposes of an injury management plan for the worker.”

seriously injured worker is defined in section 32A of the 1987 Act:

means a worker whose injury has resulted in permanent impairment:

  1. the degree of permanent impairment has been assessed for the purpose of Division 4 to be more than 30%, or
  2. the degree of permanent impairment has not been assessed because an approved medical specialist has declined to make an assessment until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable, or
  3. the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”

suitable employment, in relation to a worker, is defined in section 32A of the 1987 Act:

means employment in work for which the worker is currently suited:

  1. having regard to:

i. the nature of the worker’s incapacity and the details provided in the medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

ii. the worker’s age, education, skills and work experience, and

iii. any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

iv. any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

v. such other matters as the WorkCover Guidelines may specify, and

b. regardless of

vi. whether the work or employment is available, and

vii. whether the work or the employment is of a type or nature that is generally available in the employment market, and

viii. the nature of the worker’s pre-injury employment, and

ix. the worker’s place of residence.”

treating specialist

is defined in Schedule 4 of the Health Insurance Regulations 1975:

specialist medical practitioner is a medical practitioner recognised as a specialist by the Australian Medical Council and remunerated in accordance with Health Insurance Commission Health Insurance Regulations 1975, Schedule 4, Part 1 at specialist rates under Medicare. “

work capacity assessment

is an insurer’s assessment of an injured worker’s current work capacity, conducted in accordance with section 44A of the 1987 Act

work capacity decision

is a specific type of decision that is made by the insurer defined in section 43 of the 1987 Act.

Catalogue No. WC01696 © Copyright WorkCover NSW 0315