Work Capacity Assessments and decisions: NSW Nurse’s Association


The NSW Nurses and Midwives Association featured a comprehensive write-up regarding the famous work capacity assessments and decisions, which may help NSW injured nurses (and NSW injured workers) better understand how these work capacity assessments and decisions work. The article also provides a very handy telephone number to the Nurses and midwives’ Association for injured nurses who need assistance and/or advice re their “assessments”.

Work Capacity Assessments and decisions: NSW Nurse’s Association

The Lamp     
1 July 2013

In 2012, the state Liberal government led by Premier Barry O’Farrell introduced sweeping changes to the Workers’ Compensation Scheme. From 1 January 2013, all injured workers in New South Wales, who made workers compensation claims prior to 1 October 2012, and who have been in receipt of weekly benefits for a period of more than 130 weeks, will be gradually transitioned on to the new scheme.

One of the steps the new legislation requires the insurer to undertake, as part of this transitioning, is a Work Capacity Assessment and decision. Your case manager does this assessment, using the documents in the insurer’s possession. The insurer must undertake this assessment prior to reducing or ceasing your weekly benefits. Under the new scheme, weekly benefit entitlements for all injured workers in New South Wales will cease after 130 weeks of benefits having been received unless:

The worker is assessed as having no current work capacity;
The worker has a capacity to work and has returned to work for no less than 15 hours a week and is earning at least $155.00 per week.

If you have no work capacity or are working more than 15 hours per week your weekly payments will continue at 80% of your Average Weekly Earnings. In summary, if the insurer decides you have some work capacity, but you are not working 15 hours or more per week, your weekly payments will cease.

In reality, only those injured workers who can successfully demonstrate total incapacity to work will have ongoing entitlements. The aim of the legislation appears to be to dramatically reduce the number of workers entitled to any ongoing weekly payments after they have received them for two-and-a-half years.


If you are working and earning more than the “deemed transitional amount” (currently $920.20 gross) you will no longer be entitled to ongoing weekly compensation. It should be noted that after the first 52 weeks of incapacity, Average Weekly Earnings (AWE) under the new scheme do not include overtime payments, shift allowances or penalties.


If you are a worker who is found to have no current work capacity and you are considered likely to continue to remain incapacitated for work indefinitely, you will be entitled to 80% of your average weekly earnings, up to the maximum of $1,838.70 per week. You will be entitled to this amount up until 260 weeks or five years. After five years only the most seriously injured workers (>20% WPI) will be entitled to ongoing weekly payments of workers compensation.

The Workers Compensation Commission has no jurisdiction to deal with disputes arising from the work capacity decisions of insurers. As a first step, the worker can apply for a review of the decision of the insurer and it will be allocated to a different Case Manager for internal review. At this step the worker needs to provide some medical evidence relating to their work capacity and has 30 days to do so.

The next step is a review of the insurer’s decision by Workcover and lastly, by the Workplace Independent Review Office.

If you are an injured worker and you receive a Work Capacity Assessment or decision notice, we invite you to contact our office as soon as possible on (02) 8595 1295 for advice and assistance, noting that the worker only has 30 days to request a review of the insurer’s decision.



Related reads:

Contact:  WorkCover Independent Review Office


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27 Responses to “Work Capacity Assessments and decisions: NSW Nurse’s Association”

  1. What a Disgrace, how can an injured worker get the extra medical evidence needed within 30 days????

    It takes months to get into the specialist…Insurers have TOO much power! the injured have NONE!


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    • write this to all the applicable politicians i’m urging you put your stress into a formal letter and send it the minister for workcover or write to the premiers office

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      ..................... September 13, 2013 at 10:53 am
      • -all the best writing to politicians – WHO WROTE THE LEGISLATION.

        why would the applicable politicians do something? what brings this to mind of many injured workers? i don’t understand many ways people think.

        now im not saying not to write to the politicians, however most of us injured workers need to consider taking ALL matters to the courts.

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        • Absolutely correct HuntingWorkcover writing to the current government does nothing except annoy you when they reply with the usual bullshit, that it needed to be done etc,etc.
          Writing to the opposition is just as fruitless, they reply advising how disgusted they are, how cruel the changes are and that they are aware of so many more like you.
          Now the opposition with the unions have the resources to fight these unfair illegal laws through the courts, but they don’t. Why would they have these laws dealt with by the courts now and have nothing to promise come election time when John Robertson has promised to scrap the laws should he win the next election.
          Again to write or not write to the pollies is up to the individual and it certainly wont hurt to do that especially as the election draws near so long as you advise the O’Farrell government that they will not receive your vote nor your family and friends. It would also help to get at least 5 or more signatures at the bottom of your letter supporting your position.
          They will only make changes if they are staring down the barrel of defeat.

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          • when you write to the politicians ask them why this is happening, why they approve of it etc throw in all the hard questions

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            ..................... September 13, 2013 at 11:56 pm
        • when you write to a politician your letter and their reply becomes a public document and they are obliged to reply to you so don’t think for a moment it won’t have an impact if enough people are asking the questions somebody can do something inside the goverment don’t feel defeated have faith

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          ..................... September 14, 2013 at 12:01 am
      • I can’t write a letter because I left school at 13 to work full-time in a shitty job!
        I’m so sorry that I didn’t get an education! I was just informed by phone that I’ve had a work capacity decision! And i just read what my my psychologist wrote, that I have severe major depression, stress and anxiety secondary to my injury! I’m sure this would be true for many of you too!

        It’s hopeless, words can’t describe how I feel ATM…I have lost my physical independence and LIFE that I once had -:(

        I heard last night on tv that 65000 people try and take their own lives a year and of that number 11000 succeed! I wonder how many were injured workers? does anyone know the stats on this?

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        • @In Limbo – your writing is just fine, mate – and it comes from your heart which is so much more “impact-ful” than many blah blah letters using sophisticated language or phrases or words. Don’t worry at all about your writing, in fact more often than not it is letters from average and less formally educated people that have the most impact.

          What was the outcome of your dreaded work capacity assessment? Fit as a fiddle with major depression (and physical injuries)?

          Please don’t ever think about taking your own life – I’d rather prefer you’d fantasise about how to smother the “person” who made your work capacity decision – they deserve to die as they don’t have a conscious, no soul, they lack humanity… not you!

          The stats about workcover related suicides are very well hidden, we have been searching for them for the past 2 years … you can guess that workcover “hides” them well in the context of “other factors” that have contributed to those poor sods having taken their lives…

          The whole system is a disgrace, designed to make anyone who has the misfortune to get injured at work SICK.

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        • In limbo its easy just ask them the hard hitting questions you need answered like why you are being treated like shit by the workcover system etc the shorter the letter the better keep strong

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          ..................... September 14, 2013 at 12:03 am
  2. In Limbo, I agree with what Workcovervictim3 says.
    There is nothing wrong with your writing at all. You don’t need fancy words or skills to explain how you feel.
    Please don’t entertain the thought of suicide, don’t let them win.
    Also there are many letters that have been written on this site which you can change a little and use, there are many letters that you can search for on the internet which you can use as well.
    Don’t give up.

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  3. Who is going to start a lobby group??? thats what we need to show up at canberra 3000 strong on the lawns of parliament house asking the hard hitting questions of the workcover system public rally’s call for a royal commission!!!

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    ..................... September 14, 2013 at 12:11 am
  4. In limbo I have written to politicians on numerous occasions…….I don’t care if I don’t use big fancy words…I don’t care if my grammar may not be correct……theses people are there to do a job.All I care about is that they are there to do a job ,not that a lot do do it.
    But everyone should be bombarding their local member and add any other MPS into your letter.

    Just write it how you see it and demand a reply.This site is a great site for support and to get advice and ideas.It has certainly helped me with ideas I throw to my husband to keep his moral up when they get him down.

    In limbo….always remember you are not alone in this everyone here on this site is affected in some way with workcover and so can provide you with the support that helps even if it is only reading and replying to comments.

    Don’t even think about self harm if you do that then they win.They won’t care.

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  5. ……..I have written to the politicians and added everyone that I could think of.I don’t care I will keep writing………… disgusting are these people when you write to a minister it becomes a ministerial complaint and they have to act on it.

    My last letter contained a page of questions …..lets see how many get answered.Especially the one directed to that Christian democrat idiot Fred Nile who voted for the amendments to make these nsw laws retrospective…..

    Someone has to listen…..

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  6. The Good News about the Work Capicty Assesment/Decision you’re forewarned about it. and if your under the old stat rate your pay will go up another $300 a week 3 months later…and in the next breath I was told they could do another work capacity assessment assesment decision at any time!!! “What can you say to that”?

    I’m just trying to get through the pain I suffer every minute of the day!!!

    So, Workcovervictim3 I don’t know yet what’going to happen in the next 3 months but how can I be positive about it?

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  7. I can’t live my life laying down in pain!!

    A massage and physio/hydro therapy might help but my time is up!!

    Am i supposed to feel grateful? And it’s bad luck I’m seriously injured?
    Because if so I need to change my attitude!

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    • 4/3/2009 I injured my back while at work lifting 3 times a 450kg Air Conditioning unit with 3 other persons on uneven loose ground and walked them 10 metres on a union site in Brisbane for a major builder. No company induction only builders site induction completed, no formal training for heavy lifting or hazardous manual lifts or team lifting procedures. Tower crane available on the day, or even sent them on a suitable truck with its own crane to lift them off would have been better suited than 4 people removing 3 units that weighed 450kg each manually. A recipe for disaster and injury.
      During my Statutory Claim with Work Cover QLD I recall breaking down to my case manager about the lack of care and treatment I wasn’t receiving considering the amount of pain I was indeed experiencing. Right Leg cramps in my calf and hamstring every night, the pain radiating down my buttock and right leg did not feel normal, when putting my boots on the next day I was in tears trying to get my boots on, thinking this is not good. These symptoms are still with me today but in a greater magnitude now as I have deteriorated further, you can feel it in your body and pins and needles getting worse.
      I also recall breaking down at the IME as I could not believe they where trying to wind up my case( 6 months) when I was still experiencing so much pain and cramps, still in the process of being evaluated for spinal fusion by neurosurgeon when the IME says that is to deal with my disc degeneration not my work injury and proceeds on.
      I recall breaking down in my Neurosurgeons office in the disbelief that work cover would not approve my proposed spinal fusion as it is dealing with my existing Disc Degeneration that is supposedly present but has only affected my life when dealing with work cover, it never affected my life being able to work at a labouring capacity on major construction sites in Brisbane prior to my accident, nor did it stop me from playing golf daily or playing a game of cricket, making love to your partner, playing with the kids and family all the things you take for granted until the day you no longer can enjoy them, be it no fault of your own.
      So I ask, why was I not sent for a Psychiatrist evaluation during my claim, it is clear I was suffering depression and distress over these people ignoring my pleas for help and the right to be rehabilitated into the workforce. Anyone of the age between 20 and 50 will suffer this same distress as we all get disc degeneration and they use this to get out of treatment. And they call us liars and fraudsters.
      The fraudsters are work cover and the hired guns they call Independent Medical Examiners. I was on the impression that work cover was better cover than Private health cover but am clearly mistaken. As I now know work cover is the employer’s insurance to get out of paying for rehabilitation and return to work costs. Very unaustralian indeed.

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      • Hey Shane,

        Thank you for sharing your story and I’m so sorry about the amount of pain you are in and your treatment by WorkCover.

        I didn’t notice any mention of your lawyer.If you don’t have, get one NOW!

        Like you you, when I was first injured, I believed that WorkCover was there to help and assist me. WRONG! And because of that misguided belief and trust I let my guard down and the bastards abused it.

        Yep, it is not right how IMEs and the insurers operate. However, on this blog you will meet dozens of injured workers, we all have stories like yours regarding the lying, misrepresentation and misinterpretation of the facts by IMEs, insurers and WorkCover.

        It’s a hard lesson to learn, but once the realisation hits you that the system is not to help you – only to get rid of you of the books, then at least you know how they play their dirty games.

        You really need some legal advice from a specialist Workers Compensation Lawyer. Always remember that the only person who genuinely has your best interests at heart is yourself and those that love you. You will always get sympathetic support on this blog from fellow injured workers.

        Even with lawyers, don’t swallow everything they say as part of their motivation is getting their fees when the case has been settled.It’s a tough road to follow fighting the injustices of this system. Be strong, get legal advice and ask questions on this blog. There is always someone here that has had a similar experience and you can learn what to do as well as what NOT to do.

        You are amongst kindred spirits.:-)

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        • Hi FU_CGU,

          Thank you for your support and thoughts. It is a releif that there unfortunate workers who have suffered the same ill feit by the work cover system that I too endure. I do have legal representation by a Plainiff only law firm apparantly, ( taking their word for it ).

          I take daily Jurnista 32mg for my pain releif. This allows mobilty to some degree and functionality towards my daily living. So therefore during my IME appointment, should he refer to my abilites to undertake various activities under the influence of heavy narcotics to my ability to achieve some sort of ” Work Duties or Suitablity” . I could not achieve anything without the aid of painkillers.

          These doings may be the fact you are having a good pain day. AKA you have let your body rest and repair to some degree where you feel heck, I reckon I feel like I could achieve something today( vacuum, or the dishes, or mow the lawn, as the doctors say you do need to maintain some sort of physical exertion) . To then realise after the fact that really you where indeed not physically fit to complete the desired task you have chosen to compare your physical capabilities to your pre injury statis. Back to bed once more to repair. As it takes very little to upset the same injury.

          I have taped my IME without permission as I figured I need to have some sort of protection for myself, I’m glad I did as now I read through it and listen to it, I have noticed that he never let me finish my reply to the point of me saying ” I haven’t finished yet” . And the queries asked are very broad and in thier favour. I am hoping I will get to use this evidence on the day of conference. I’ll take it and try.

          All the best to all who contibute to this wonderful site.

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          • @Shane bloggs – sorry to hear about your all-too-common story and appalling treatment. Hopefully with the help of your lawyer and your own surgeon you can appeal this decision – as you rightly state we all suffer eventually from degeneration, any healthy person would show some degenerative changes on their spines on xrays, part of ageing.
            You may want to read a little more here:

            Glad you found us and a warm welcome to our big injured family!

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            • @workcovervictim3

              Thank you for you reply, what do you mean we can appeal the decision. What decision may we appeal please? Workcover covering the costs of surgery and ongoing medical bills.

              Or the fact that I was majorly depressed and broke down at the first IME as I could not believe they where closing my file, my workcover case manager and my neurosurgeon during my statutory claim that should have raised red flags, considering I experienced a major incident that affected my entire life now, with detriment.

              And I never recieved treatment for my depression even after my treating neurosurgeon suggested some form of physcological intervention required. Completely ignored by my case worker/ manager and ignored by the IME who made judgement on my proposed surgery as not required, even though he is not a treating surgeon nor will he ever be.

              So how does this doctor consider me stable? If I am still to see a shrink? A bit bias and ignorant I think. This is all past tense as it happened in 09.

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      • Shane bloggs , your injury is also my injury as you described . Only I was lifting a 60 kg patients legs . Lyrica is helping me with the god awful leg cramps and am soon to undergo a nerve block . Have you tried these for releif ? . I too have the rediculous Pre-existing bullshit that we never knew about till we injure ourselves . Get some councelling even if its funded under EPC Medicare . ( I think it’s called ) I broke down to my case manager and luckily workcover have approved a few sessions . Great to unload on psychologist rather than our poor family members . Take care mate . You will learn so much from this fantastic site x

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  8. Dear Shane
    My injury similar to yours,
    A few untold facts of back degeneration
    Almost everyone in the world has some kind of back degeneration over the age of 40 years
    Degeneration of backs occur faster if you are in manual employment or where lifting is a major factor
    Many people can go their whole life with a degenerate back without any symptoms
    So all I all everyone will have a degree of pre-existing back degeneration
    I just keep repeating the same story about how I got injured and that I had never had a back issue before do not change your story at all also you should keep a diary off all events all TGP, physio, xrays done ,injection , tablet change, what else aggravates your back, how you mentally feel, it soon adds up and then you don’t have to repeat yourself you have all your evidence written down I scan and copy everything I receive or send
    Regards Lucy ducy

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    • @ Dear Lucy,

      Thank you for your reply, a have another interesting fact…If the disc is a pain generator then the disc is not dead, ie, not degenerated. So if you have a discogram and report positive pain reproductions then the apparent disc degeneration you supposedly possess is not the contributor. Therefore any surgury intervention proposed should not be denied due to disc degeneration.

      You have a serious injury that should not be ignored. Like you mentioned, everyone gets and has some sign of disc degeneration on a MRI and the powers to be have found a legal loophole to get out of paying for needed surgery due to what it seems even fit people have.

      I can understand their side of things if I had of broken my back previously or pulled a muscle or tendon in my back or neck or heck anywhere ( been pretty lucky). But to maybe over exhurt it at work and get a minor back ache from time to time and goe to the docs for some pain killers other than panadol does not constitute existing disc degeneration. So apparantly lifting 450kg air conditioning unit with 3 other people on uneven loose ground with the heaviest corner, me being the shortest should not have caused the physical harm I endure daily since the day of my incident. What was I thinking….Please explain

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  9. @Shane: as I understand it you reside in QLD – as is the case in any other state there is a dispute resolution system available re workcover insurance decisions – in QLD it is Q-COMP (internal review – usual useless), Queensland Industrial Relations Commission or Industrial Magistrate, Industrial Court. In Victoria for example its is conciliation, medical panel followed by court.
    What this means is that you and your lawyer can overturn the decision the workcover insurer made re denial of your surgery or denial of liabiliy for your injury based on the biased IME report stating you suffer from pre-existing degenerative disc disease, which ever applies. The legislation in QLD is also pretty clear and states that for example a pre-existing condition is compensable if work was a significant contributing factor .
    So even if they allege you suffer from a pre-exisiting “degenerative”condition – this can still fall under workcover and surgery can still be paid for.

    Not sure what your lawyer is doing for you! But if I were you I would have a good chat with him, for there are avenues and remedies to overturn this decision!

    Normally the way to go about this is to gather evidence from other specialists, which can be your treaters, as well as second opinion (for which the insurer has to pay for). Your medical history is also scrutinised as well as your work history and the evidence is compiled and then taken to the Commission (Dispute resolution) who will then make a decision. Many injured workers who have their claims denied based on “pre-existing” usually manage to overturn such decisions; and many injured workers who have their surgery/procedures denied also win. Remember that insurance companies operate in modus operandi which we have come to call SSS – stall the victim, starve/galsight the victim, then settle. Basically they deny and delay just about everything until you go away or are so desperate you’ll take any little scrap and close the file.

    You should try and make yourself familiar with your rights – starting with reading the QLD workcover legislation (in lawman’s terms) which you can find here:
    Each state/territory and the Commonwealth have separate workers compensation legislation. The principal legislation is supported by regulations. For a quick overview of the workcover legislation in all the states:

    An updated version (July 2013) is available here: Comparison Workers Compensation Arrangements in Australia and NZ – July 2013 which includes the 2012 workcover NSW reforms:

    TALK TO YOUR LAWYER – and prepare for a good fight, don’t give up!

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    • @wokcovervictim3

      Could you please repost the link for the “lawman’s terms” the above link hasn’t shown up. This would be most helpful, as I am becoming more aware of the many duties my case worker ignored. As mentioned there was many red flags raised towards my mental state and a report from one of my treating doctors to seek mental help, ignored and pushed through to IME.

      Then I read in the Qcomp Claims management Guidelines that ” An insurer must refer an injured worker to Return to work Assist once the statutory claim is closed and the worker is unable to return to work. Referrals may also be made on receipt of a Notive of Claim if there hasn’t been a referral previously”.

      I was never offered any return to work assistance in any way when my claim ceased. I was put on Centre link Disablement payments as the Employment agency Centrelink send you too to who evaluate your working capacity. They agreed with my Notice of Accessment that I am Permantly Impaired and unable to perform at a “working capacity” at a safe level without harm or danger to other employee’s and the public.

      Yet now during litigation their lawyers ask (workcover bullies), why do you feel you are unemployable?
      Coz tha doktas says so. derrr

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