A work capacity decision in NSW is not necessarily the end!


Thanks to our mighty contributor ‘At A Loss’ we were alerted to the following recent NSW Workers Compensation Commission case which basically shows that a work capacity decision in NSW does not necessarily mean the end! Under the legislation (11.) the Commission has jurisdiction to make a continuing award pursuant to the provisions of the former s 40 of the Workers Compensation Act 1987 (the 1987 Act).

A work capacity decision in NSW is not necessarily the end!

work-capacityAs At A Loss stated: I think that if you read the case it shows that the commission can make orders for payments to continue. They cant review work capacity decisions as it is out of their jurisdiction thanks to the O’Farrell government.
I think this is a way around for those injured prior to the changes as it highlights the importance of an agreement prior to June 2012 may be binding.

I think it is all in the way your legal eagle fights for you, they cant go to the commission and appeal a work capacity decision but they can go to the commission and apply for your payments to continue, and the commission has the power to make those orders and the commission looks at everything not like the insurance company.

The case

Direct link to the NSW legal case WCC : R v GLENWOOD GARDEN 2 Sept 2013- Citation [[2013] NSWWCC 313 >>


Thank you At A Loss !!!


Related post:

WorkCover NSW work capacity decision – WIRO update

23 Responses to “A work capacity decision in NSW is not necessarily the end!”

  1. Hi, just looking to see if someone can give me some clarity on Reynolds vs Glenwood Gardens Limited determination.

    My husband has just been informed that his make up pay is to be reduced by $250.00 a week and his work capacity assessment will determine how long he continues to get make up pay. His claim was acceptable in 2007.

    Does this decision mean that we can request a review under s40 and possible have his payments reinstated to the original amount and continued until retirement age.

    We have just engaged a solicitor to help us work through the whole process and I would like to review this with them.

    Thanks for any help.


  2. the latest development legal advice was ask for an Incident Assessment Officer at CGU to make a complaint about my case manager he was predudice in my case and lined up an IME even though this case manager at CGU had in writing i would not attend and pay $80 for me not showing “who’s getting a tickle there i ask you” and this Incident Officer has denied the complaint rather telling me if i was to go official on the case manager it would affect the progress of my claim this story just gets better and better i will be writing to the premier again about this Shmuck God Damm It!!!

    .................. September 20, 2013 at 2:12 pm
    • @………………… :

      In my IME report dated the 18/08/2009 the bloke ( as referring to these people as doctors leaves a bitter taste in my mouth ) wrote ” I would be of the opinion that the work related Aggravation would have ceased some six months from the date of injury”.

      I would like to note that my injury occurred on the 04/03/2009, six months from that date would be 04/09/2009. Therefore the IME fella has not thought this through. This date does not include the fact that they sent me to the back rehab course, completed on 03/07/2009 and failed ( more pain when I was dicharged than when I went in ) way to early in my treatment and further injured my back. The six months from this date of reinjury would be 03/01/2010.

      Yet on the 18/08/2009 the IME knob has the opinion that I should no longer feel pain and be over the injury ( yet footballers/ sports stars may take 12 to 18 months to heel ). It is obvious that he used a generic report to some degree, maybe he was bothered to changed a few things like my name and date of birth, address, they do get paid alot of money for these reports, they may make some effort I guess.

      Who do you know that gets $ 1300 at a minium for two hours work, that works out to $ 650 an hour, this buys you 5 pages of report, any more and they charge per page. So for maybe 2 hrs work 1.5 spent having coffee reading over the files watching sunrise on tv. The other 30 mins of not listening to their patients, interupting your reply, watching your every move like a hawk on a mouse. Listening to your answers, ready waiting to pounce, they are so sneaky they are the one’s to decieve on the day, checking for waddell signs, slyly two or three different ways, they must get training from the federal police for their questioning tactics, going over the same question just a different wording trying to trip you up somehow, pain cannot be measured, we are guilty till proven innocent unfortunately. A very harsh reality and a bitter pill to swallow.

      Sorry for the rant…..

  3. They are denying a new claim i have lodged.
    my injury was already accepted 2 years ago.
    a year ago they steered me through murky waters landing me at a medical panel, which agreed with a biased IME who said i was just lacking motivation to work “who is’t when their in the eye of the workcover storm” he agreed because i was bullied to resign from the council fair work australia who let this council suppress my unfair dismissal hearing so the results can’t be used legally the whole system is a stitch up.
    So it was the IME who said this person is’t injured this person just wants to stay at home and get paid for it.
    also noting the medical panel requested i bring all scans and medical evidence along to the medical panel hearing, when i did so and asked them if they would like to have a look at anything i brought to the hearing they all declined, “stating we will not be needing to
    look at anything you have as we are here to form our own professional opinions
    Which was i left my job because i lacked motivation even though i had to involve the police in the harassment from this said council

    .................. September 20, 2013 at 2:07 pm
  4. CGU suggested to me they would see arrange an IME for me so i wrote to them the next day advising them i would not be attending whatsoever. However they still arranged this appointment and when i failed to attend this IME was paid a failure to attend fee??? $80 i believe,,,WTF but they won’t pay any of my medical treatment past visits that i went for and was treated for the said injury and had to pay for out of my Centrelink pay!!!

    People its time to rise up and trash this workcover machine i say all injured workers should grab a pitch fork, shovel, anything they can grab and surround the offending big 6 now 5 insurance company’s head quarters responsible for this mess all together and attack!!!!!!!! Hooo Rah!!!!

    .................. September 20, 2013 at 7:43 am
    • @……. why do they bother to send you to an IME if you’re obviously not receiving anything from workcover and already on Centrelink? Puzzling…? I don’t know in what state you reside but in Vic and as far as I know in all others if you don’t attend an IME without a reasonable excuse, they will use that as evidence of “non-cooperation” to cut off whatever benefits you may be receiving and I can only guess that they may using this not to allow payments of past medical treatments…?

      • It could be the other way around, if you apply for workers comp, and get rejected and fight the rejection, you usually end up on centrelink, whilst you fight workcover to get your claim accepted and are therefore paying for medical expenses to tend to your injury out of your own pocket.

  5. @At A Loss…..It was certainly obvious seeing as it had nothing to do with vocational and mostly to do with the actual day of the accident…I am sure she wanted to trip him up but did not succeed.
    As he said to her”I wasn’t aware you wanted all this information I would have bought it for you…I thought I was here for you to decide what job I could do with my restrictions”
    Anyway wait and see

  6. Ps I love this site…..I have learned so much and I thank everyone who has contributed.

  7. @workcover victim…..it will be something outrageous for sure….she said if he couldn’t come up with three jobs he thought he could do she would come up with them for him…….go for it I said let’s see what you come up with.

  8. So off we toddle to the “vocational assessment with the rehab cow…..and almost the entire thing was about the accident…?……..hubby had to go through each step of the day it happened……why I asked….no answer…..
    I checked everything she wrote made her correct her mistakes….eg she wrote he had a knee reconstruction….no I said he had a total knee replacement.

    Finally a small amount of what I assume a vocational assessment would be…she kept “apologising”….saying it was because of the new laws…blah blah blah.Used big words which I knew what they meant…..don’t think she did…lol.

    Anyway lets see what she comes back with,……she did not like it when I asked what her qualifications were or who would be providing the retraining for the work they will say he can do…..

    Made her change things on the resume they made for him…..did not like that.
    Had excellent communication skills…..literacy is basic and he wears hearing aids….so to me communication is impaired……..had he had excellent computer skills…….he can send an email….made her change that along with various other things……..if we have to be honest then so do they…..

    Anyway lets see what happens…I love my hubby and will fight tooth and nail for any of my family who are wronged……

    • @Leeanne – so good on ya! And I for one cannot wait for the outcome of that assessment – the famous “report”. Looking forward to hearing more. Your hubby is so lucky to have you by his side 😉

  9. Well done At A Loss and thanks, surely you’re a winner 🙂

  10. Thanks At A Loss……We will definitely keep fighting until the bitter end.Hubby gets down but then We give him a shove and away we go again…lol. as I am sure everyone knows it is extremely frustrating and very hard to fight but I agree everyone has to stand on their dig.He injured himself in February 2010 so he is prior to the crappy amendments.

    I have found this website very very helpful and a place I can vent so not only is it helpful to the injured worker it is helpful for the family who is also affected by the antics and bs.

    • I like that, I give myself a shove or my partner gives me a shove and the wheels start turning again, and I find strength every time I read or find out something new that may help.
      This site is valuable to all injured and those around us, it does bring light and reaffirms that we are not alone.
      Leeane since being injured the insurance company never lets me down, they consistently stuff, thus rewarding me with numerous victories.

  11. I have read each one of these reviews and they have all been sent back to the insurer to get it right.It is all in the wording.Very important hopefully they keep stuffing up.
    Bastards they are horrible people and their cohorts the rehab are just as bad.
    My husband has to have a vocational assessment tomorrow so lets see what see what they come up with.Only a matter of time before he is also thrown on the scrap heap.
    He has been assessed as having 21% impairment due to knee injury.Because of this he has developed other medical problems ,he can’t walk far,can’t sit for long cant drive,left school at 14….worked in labouring jobs all his life so education is not complete…..struggles with reading writing,wears hearing aids in both ears now suffers major depression because of workcover is 57yrs…the list goes on.
    Cant wait to see what he is capable of doing.They have not done anything for him so far .
    Another waste of money….

    • Leeanne, the vocational assessment is extremely biased. Don’t worry to much about it. As for being thrown on the scrap heap I think not, at 21% the injury is considered serious and no matter what the vocational assessment comes up with remember the workers compensation has jurisdiction to make a continuing award pursuant to the provisions of the former s 40 of the Workers Compensation Act 1987 (the 1987 Act). I think, so long as your husband was receiving benefits before the amendments.
      Remember the workers compensation commission will look at everything unlike the insurer which only looks at what will help them.

      We only have one avenue and that is to FIGHT, FIGHT, FIGHT

  12. This is great! However,it was about makeup pay and they succeeded for that to continue….a very good outcome!

    • In Limbo
      it is important to seek a review once you are informed of the work capacity decision.

      another work capacity review by wiro.

      As you can see in the review it is imperative that the insurer uses the correct phrases and wording. They almost always get it wrong. The result is they must recommence your benefits and start the process all over again.

  13. Wow, thankyou At A Loss, there could be some light on the horizon yet