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Work Capacity Assessments in NSW Workers Compensation - Part Two

Work Capacity Assessments in NSW Workers Compensation – Part Two

Published on December 17, 2020 by Maithri Panagoda AM and Thomas FelizziMaithri Panagoda AM and Thomas Felizzi


In our previous article we examined a Work Capacity Decision under NSW workers compensation law.

This article looks at a work capacity assessment.

What is a work capacity assessment then?

It is simply, an assessment of the worker’s work capacity. It reviews the workers’ functional, vocational and medical restrictions and can occur once every 2 years or at any stage of the claim. As you will see below, a WCD considers more than ‘just’ capacity, but considers employment at large, age, skills and work experience. Importantly, if a worker is as assessed having a whole person impairment of greater than 30% then a worker is unlikely to have their work capacity assessed, unless the worker requests it, or it is ‘appropriate to do so’. 

44A Work capacity assessment

(1) An insurer is to conduct a work capacity assessment of an injured worker when required to do so by this Act or the Workers Compensation Guidelines and may conduct a work capacity assessment at any other time.

(2) A “work capacity assessment” is an assessment of an injured worker’s current work capacity, conducted in accordance with the Workers Compensation Guidelines.

(3) A work capacity assessment is not necessary for the making of a work capacity decision by an insurer.

(4) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it.

(5) An insurer may in accordance with the Workers Compensation Guidelines require a worker to attend for and participate in any assessment that is reasonably necessary for the purposes of the conduct of a work capacity assessment. Such an assessment can include an examination by a medical practitioner or other health care professional.

(6) If a worker refuses to attend an assessment under this section or the assessment does not take place because of the worker’s failure to properly participate in it, the worker’s right to weekly payments is suspended until the assessment has taken place.

Suitable Employment

So once a worker’s work capacity is assessed, a work capacity decision usually follows. The focus of a WCD and the evidence it relies on, such as vocational assessments, will largely concern whether a worker is suited to ‘suitable employment’ (section 32A of the 1987 Act).

When considering section 32, a practical exercise must be performed. This includes an assessment of the worker’s incapacity, age, education, skills and work experience. This does not include a consideration of work capacity which is, does not consider what is  capable of being obtained on the open labour market. The consideration should be whether ‘suitable employment’ is employment that is real, is potentially available and that considers the criteria of section 32A(a)(i) -(v) below.

32A Definitions:

“suitable employment” , in relation to a worker, means employment in work for which the worker is currently suited–

(a) having regard to–

(i) 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

(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 Workers Compensation Guidelines may specify, and

(b) regardless of–

(i) whether the work or the employment is available, and

(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and

(iii) the nature of the worker’s pre-injury employment, and

(iv) the worker’s place of residence.

We can help

If you are a worker and receive a WCD then you will need respond promptly and efficiently with expert legal advice. The prospect of losing weekly benefits is undoubtedly stressful and we would recommend that you contact Carroll & O’Dea Lawyers.

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