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 AssociationThe 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.
WORKERS WHO ARE PARTIALLY INCAPACITATED FOR WORK AFTER 130 WEEKS
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.
WORKERS WHO ARE TOTALLY INCAPACITATED FOR WORK AFTER 130 WEEKS
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.
- WorkCover NSW work capacity decision – WIRO update
- Too few NSW injured workers know of the WIRO existence
- Time to discuss some issues with Mr Kim Garling – the NSW WIRO Officer
Contact: WorkCover Independent Review Office
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