WorkCover NSW work capacity decision – WIRO update

WIRO-workcapacity-review

Here is a recent WorkCover Independent Review Officer procedural review decision of an insurer’s work capacity decision or assessment on an injured worker.

This review occurred after the insurer’s decision to reduce the injured worker’s weekly payments to “nil”.

This WIRO 21 page (heloooo) “report” is, in our humble injured opinion  nothing more but evidence of the extra , wasteful, questionable and costly, bureaucratic red tape that has been created as a direct result of this new draconian NSW workcover legislation.

WorkCover NSW work capacity decision – WIRO update

 

Direct link to the WIRO “report” (PDF)>>

As you can clearly see, the decision highlights a number of procedural flaws with the work capacity decision and also with the entire -ridiculous (xcuse us) system of work capacity assessments to date, especially  to the detriment of countless NSW injured workers (and their families).

This decision could possibly be used to reinstate injured workers weekly payments who have had a negative outcome since the inception of the 2012 Workers Compensation Act 1987 Amendments where the insurer made the same errors.

Amongst the insurer errors mentioned in the decision include:

  • A failure to provide the date of cessation of payments
  • Inaccurate or non-specific referencing of the particulars of the relevant legislation
  • No reference to the entitlement periods
  • Non specification of the key information or evidence relied upon to make the decision/s.
  • The failure to follow the requirement of providing 3 months and 4 days clear notice of the enactment of the decision. (This may be in breach of S. 54 of the Act and prosecutable)

The WIRO review decision also states that the WorkCover Authority has failed to generate or approve a form for review of insurer’s decisions and that they are yet to formulate or gazette relevant Guidelines to the making of Work Capacity Decisions – Best Practice Decision- Making Guide.

 



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71 Responses to “WorkCover NSW work capacity decision – WIRO update”

  1. I too apologise if I offended anyone with my views.

    I would like to get back to the topic of work capacity

    Section 32A of the 1987 Act defines a seriously injured worker as
    “a worker whose injury has resulted in permanent impairment and:
    (a) the degree of permanent impairment has been assessed for the purposes of Division 4 to
    be more than 30%, or
    (b) the degree of permanent impairment has not been assessed because an approved
    medical specialist has declined to make an assessment until satisfied that the impairment
    is permanent and the degree of permanent impairment is fully ascertainable, or
    (c) the insurer is satisfied that the degree of permanent impairment is likely to be more than
    30%.”
    I have looked through the WIRO report and the legislation.
    we as injured have whole person impairment assessments carried out not permanent impairment assessments. as seen above the reference is made to permanent impairment, would it be viable to argue that an insurer is undertaking to assess an injured person that may be above 30%.

    example injured person has lost use of a limb if an assessment was conducted based on the loss of use of the limb only then the % of impairment would be greater than a whole person impairment % ?

    further on page 8 in the report above

    Garling states that there is no legislative requirement for a worker to be assessed at over 30% to be deemed a seriously injured worker.

    so if an injured worker advises the insurer that they are a seriously injured and the work capacity assessment being conducted should not be conducted as the injured worker has not requested such then is it fair to argue that it cannot be carried out ?

    any thoughts on this anyone ?

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  2. GREAT to see the apologies! Thanks folks! Again we’re all injured and highly sensitive /sensitised human beings here, and we should endeavour to keep this in mind at all times when commenting/replying, as not to inflict any further undue hurt to each other.
    I really appreciate that you apologised to each other – you’re all so wonderful and valuable, keep it up!

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  3. He may have been denied a just outcome to his WIRO review. However he can go back to the commission and have the WPI assessment dealt with again.

    He can have the matter dealt with under the nature and conditions (code for deterioration) of his condition.

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    • John what I mean is work capacity requires a permanent impairment assessment

      what we injured folks go through is a WPI whole person impairment
      there is a big difference.
      if an assessment is done only on the injury it will be higher than the whole person percentage

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      • @At a Loss : I think it’s the other way around: permanent impairment becomes the WPI -so if you havee multiple injuries for example a physical and a psych they add up to to be calculated as the total WPI. If you have 1 injury and you are assessed as having 20% perm impairment then your WPI is 20% – see http://www.workcover.nsw.gov.au/formspublications/publications/Documents/workcover_guides_evaluation_permanent_impairment_3rd_edition_0970.pdf

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        workcovervictim3 September 7, 2013 at 7:18 pm
        • workcovervictim3
          I know what you are saying however I am reading Garlings comments

          Garling states that there is no legislative requirement for a worker to be assessed at over 30% to be deemed a seriously injured worker.

          what im trying to convey is that if an injured workers states they are 30% and are a seriously injured worker then the work capacity should not progress because there is no legislative requirement to have a worker assessed.

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        • @workcovervictin3, in Nsw you can’t have both! As in my case I sustained a physical injury and I was bullied and harassed…in the workcover guidelines you can’t claim for both: only the physical injury!

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          • @at a loss, I understand what you’re saying however, our case managers wouldn’t agree because I’m just under 30% by my specialist and I was much lower by their ime… And i accepted that amount…but i was too late for pain n suffering…However I’ve just read the guidelines and i should’ve got another 2% for my 12 inch stomach scar…and for a spinal stim another 2% however I’ve been resisting that because of the recovery and maintenance of it!!!!
            The whole system is unfair…I’m well over 30% without adding in the psych part!!!

            And in the guidelines updated July 2013 it said pain and suffering for anyone who’s injury was before the new legislation , now that was a surprise to read!! I might have to re read that again and if so why aren’t the insurance company’s paying!!! I was told by my case manager I would have to take it to the w.c.c…
            I’m so exhausted because of pain, I have lost my quality of life!!!!!

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            • In limbo,
              yes if your injury was before the 2012 amendments you are entitled to pain and suffering, you are also entitled to go back before the commission and claim further deterioration. this is why the Goudappel decision is being appealed

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  4. Ok I will attempt again to clarify. A work Capacity decision is just that and is dealt with by WIRO on a procedural basis, that is a bureaucratic decision being reviewed by a bureaucrat. They can not consider the medical evidence only the previous determinations.That has to be subject to a Medical Dispute in the Commission on say the nature and conditions provisions.

    Also I say this with the caveat that I found it in the legislation, and you have to look at all of the various ones, but am searching to find it again, so far with no luck. Is that you can reapply to have a re-assessment under the current legislation and be given a current WPI ratting.

    Mr. Molloy had his decision reviewed by WIRO and set aside on a technicality, but the insurer is going to go back to the drawing board and do it correctly next time.

    You have to have a medical reassement to increase the WPI, then be knocked back by WIRO again and take it to the Court of Appeal.

    In my case I have 10% on the table of disabilities for pre 2002 and 6% WPI on the 2002 changes. Stay with me, so that gives me currently an aggregate of 16%. I just underwent a re-assessment on monday under the nature and conditions provisions. So stay tuned.

    However, in 2009 I ended up in the IRC over a dispute about re-employment and the insurer stated I was medically unfit. The IRC referred it to the WCC as a medical dispute.
    The insurer also sort a separate opinion to support their case. The end result being, the WCC resolved I was medically unfit, the insurance specialist said I was medically unfit, So I lost in the IRC or did I?

    My current Work Capacity pending decision say’s I have some capacity.

    I can fight that in WIRO and maybe get a stay, but the insurer will do it again as per the WIRO instructions. So round and round we go.

    I know I have to fight them in the Court of appeal already on the medical evidence.

    Workers Compensation Act 1987 No 70 Sect 43 Work capacity decisions by insurers

    “(e) a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,”

    In a nutshell, be prepared to go to the court of Appeal and that the Court of Appeal can award costs, read that last comment carefully.

    As a last comment, from my perspective I have absolutely nothing to loose by going to the Court of Appeal. In May I was diagnosed with Metastatic cancer so I am terminally ill already, and do not care who I upset or offend because I have nothing to lose.

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    • @John, omigog, I am truly horrified to read you suffer from a terminal form of cancer, God I am lost for words here, and can not express how truly sorry I am, I can barely imagine what you must be going through and, where you find the strength and courage to fight these morons. God! John! I am truly lost for words, all I can say is that I am with you here in thoughts and empathy….

      For those who want a good write up about the procedure of a workcapacity review in NSW, the IWSN has a good brochure: http://www.injuredworkerssupport.org.au/wp-content/uploads/2012/04/007-Reviews-of-work-capacity-decisions-fact-sheet-2013.pdf

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    • @john,
      I am also so sorry to read about your current situation! And I am also lost for words today however, you are in my thoughts because you are strong, you haven’t given up on the tangled web that’s been woven for us!

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    • John,

      I still cannot believe what these bastard insurers get up to!

      Man, the cancer thing is such a tough call! I admire your spirit and determination!

      If your prognosis is what it is, why can’t these arseholes settle your claim and leave you in peace.

      What is happening to our society? Since when is money and power more important than compassion?

      There is a lot I would like to write, but it is a public blog!!!!!

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  5. @John, on my behalf and on behalf of workcovervictimsdiary I want to tell you that you are and always will be in my thoughts.

    I am thinking of you during this time of great difficulty. I am really sorry about what has happened to you – life is really cruel and unpredictable sometimes (I very nearly died twice myself in 2007 and 18 months ago, with massive cardiac failure on the operating table, the cause unknown and… I need massive surgery soon again)
    All we have at times like these are the love of family and friends and our memories. I hope you are finding something good in each day – and…maybe that should be rule for all of us!

    To me, and undoubtedly to many other (injured folks) you are a true hero, to be so strong and to give it your best fight is astonishing under your circumstances. You are such an inspiration!

    You certainly have an amazing kind of influence on our lives, and that means the world to me, this site and it’s thousands of daily readers!

    You are in my thoughts and always will, and I hope it’s OK for me to say I hope you’re feeling not too bad and that you have mostly good, and especially pain-free days.

    Please let me know if there is anything I / we can do to make you feel or help you feel more comfortable.(i.e. publish your story, access our private forums for friendships and support, talk to someone etc)

    I hope that your amazing strength and the support of those who love you (such as me and the people on this site) will help sustain you through this terribly difficult time. And may you WIN!

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  6. Please concentrate on what I said about Work Capacity Decisions not my last sentence.

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    • John, thanks for all the info. As you requested I will not concentrate on your last sentence ….. so you know…

      thanks

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  7. The directors of the Injury Support Network Inc ( ISN ), on behalf of all workers in NSW, past, present and future, injured or not, seek a review of this Amendment Act, and it’s consequences for society. The directors of ISN request an urgent meeting with Barry O’Farrell, and Greg Pearce, to provide answers to our previous inquiries as to what this legislation is. No one seems to know, while approx 25,000 current injured workers in NSW, are about to be abandoned by the NSW Gov’t and forced onto Federal Newstart and Medicare. The majority of workers, injured in the future, will be sent the same way, asap. I am a former advisor to Greg Pearce, March 2012 until July 2012, when these evil laws were enacted, and advisors were sacked. In Feb 2012, when I met with Greg Pearce MP, he said to me, in the presence of Leslie Williams MP that “WorkCover is a basket case that can’t be fixed “. Instead of attempting to fix it, he has legislated that it can be a basket case. This legislation discriminates on the basis of employment, occupation and disability.

    Why is this important?
    All injured workers in NSW, past, present and future are now subject to the most evil injury law. The NSW Gov’t has taken away your right to diagnosis, medical care, treatment, rehab and legal advice. Any injury advised to WorkCover will be assigned a case manager of an insurance co. This case manager, often 17 years old, and about to be calling you from India, will have absolute discretion. Their decisions are binding. WorkCover will decide if you can have free legal advice, where you will be assigned 1 of only 250 lawyers left in the scheme. Otherwise you will have to pay. Any appeal about your capacity to work, must be taken to the Supreme Court, at your own cost. You will be dumped on the dole and medicare.
    Business will not employ you because you have been injured. ISN has met with the NSW Business Chamber, as well as regional chambers, and confirmed.
    We call on the people of NSW to assist in this urgent campaign.
    We ask that you visit, email, facebook,twitter and/or phone your State MP, WorkCover, Insurer, Centrelink, Business chamber , Union, GP, employer, colleagues, family and friends. Ask if they know of these amendments. Anything would be helpful. Everyone in NSW is affected by this legislation. Families are breaking up, people are living in cars, all because they went to work and were injured. Homelessness and suicide in NSW is about to rise rapidly. This is a statewide call to assist. Please encourage as many as possible to sign our petition and visit http://www.isninc.com.au for more info.

    http://www.communityrun.org/petitions/nsw-workers-compensation-amendment-act-2012

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    • There is only 132 signatures on that petition @at a loss…I signed it months ago.
      Workcover told me last year that there are 40000 nsw people that will be having work capacity assessments/decisions.

      5000 injured workers so far have had work capacity decisions made and there’s 35000 left! One can only wonder what’s happened to those 5000 when there’s only 6 decisions to date on the WIRO website! Hopefully most have had good outcomes or they were/are physically fit or sane enough to return to work or another job.

      If it wasn’t for my current inability/disability situation I would’ve ran back to work as quick as I could and there’s no doubt about that! I feel ripped off to have my life end like this…and I wonder how I’m going to have the strength to keep on going.
      I’m not getting better I’m getting worse!!

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  8. Hi workcovervictims could you please post.

    http://www.wcc.nsw.gov.au/Decisions/Decisions/15630-12_Reynolds_COD_SOR.pdf

    A work capacity decision is not necessarily 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).

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  9. @at a loss,thanks…that’s a good outcome,luckily she was working!
    If one doesn’t get a good outcome at the WCC the next step is the Supreme Court and who has the money to pay for that???? I doubt WIRO will supply the funding? It’s hopeless for the seriously injured that can’t work or who won’t pass the required medical Like lifting 20 kilo’s…some have very stringent restrictions as to not exacerbate their injury further! What’s your thoughts on this? My thoughts are that its hopeless unless you have money to fight or find a job with a compassionate employer working reduced hrs!

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    • In Limbo,

      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.

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  10. @at a loss, the current waiting time to get into the WCC is 14 months!
    How do we talk in private, on the forum? I see people are scared to talk on there about their stuff!! Well, that’s what one particular person said.
    In 3 months I will be transitioned over to the new legistration and they said another work capacity assessment decision will be made then! We live in FEAR waiting!!!

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  11. Cant and wont talk in private. sorry.

    We all comment on here under a nick name for obvious reasons.
    We also don’t go into identifying details unless we want to or feel strong enough to.

    As for your work capacity you say 3 months before a decision is made then you have another 3 months before it is actioned. during those 3 months you ask for a review, then you ask for workcover to review, then you ask wiro to review. May I suggest you contact your lawyer and ask they apply to the commission for a continuing award pursuant to the provisions of the former s 40 of the Workers Compensation Act 1987 (the 1987 Act).
    email them the link in the recent decision I found. http://www.wcc.nsw.gov.au/Decisions/Decisions/15630-12_Reynolds_COD_SOR.pdf

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  12. Ok thank-you, I totally understand!

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