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Work Capacity Decisions – was the WCD done correctly and what are the avenues for review? – Part Three

Work Capacity Decisions – was the WCD done correctly and what are the avenues for review? – Part Three

Published on December 22, 2020 by Thomas Felizzi and Maithri Panagoda AMThomas Felizzi and Maithri Panagoda AM

Introduction
In our previous articles we examined a Work Capacity Decision and a Work Capacity Assessment under NSW workers compensation law.

This article examines if a Work Capacity Decision has been done correctly and how to go about having a WCD reviewed.

Was the WCD done correctly?
It is always important to consider whether an insurer has correctly performed a work capacity assessment or a WCD and if the worker has properly engaged in the same.
If the worker does not engage in the process properly then weekly payments may cease.
An insurer must also give the worker 2 weeks’ notice that a review of work capacity is taking place, explain that they may need attend a medico-legal or that they may contact the nominated treating doctor and explain to the worker when they can expect when to receive the decision and their rights of review.

How to review a WCD
Internal review with insurer
To perform an internal review, workers need to complete a review form, and the insurer must consider any further material provided and come to a decision with 14 days. (287A of the Workplace Injury Management Workers Compensation Act 1998 [the 1998 Act]).

It should be noted that asking for an internal review pursuant to section 287A of the 1998 Act does not stay the decision of the insurer regarding WCD. When seeking a review, the appropriate evidence that needs to be provided to the insurer includes but is not limited to a vocational assessment, medico-legal evidence and anything that contests the assertion of the insurer that the worker cannot earn or can work in the employment that is considered suitable.

Workers Compensation Commission
The matter is dealt with by a delegate of the Registrar of the WCC and usually on an expedited basis by filing a Form 1B.

The operation of Section 298B of the 1998 Act means that when an application is lodged with the WCC to review the WCD, the WCD is stayed if the worker has received weekly payments for a continuous period of at least 12 weeks, the decision relates to the discontinuance or reduction of the amount of weekly payments and the dispute is referred to the WCC before the expiry of the notice period under the new section 80 of the 1998 Act, which is three months (plus postal notice allowance) (section 80 of the 1998 Act).

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.

Click here to read the full article on Work Capacity Decisions and Work Capacity Assessments.

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