The Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 are set to be amended in relation to Work Capacity Decisions.
The current situation
Presently an insurer can make a decision known as a work capacity decision in relation to:
- A worker’s current work capacity
- What is suitable employment
- What an injured worker is able to earn in suitable employment
- What an injured worker’s pre-injury average weekly earnings or current weekly earnings is
- 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
- Or any other decision that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount based on the above
Unfortunately, this has meant insurers have been able to make work capacity decisions with little regard to the facts and circumstances of each claim resulting in devastating consequences for many injured workers. Unreasonable work capacity decisions have resulted in many workers being forced to apply for Centrelink benefits, receiving significantly lower payments resulting in them being unable to keep up with their weekly mortgage payments and having to sell their family home.
An injured worker must jump through numerous hoops and abide by strict time frames to have the insurer’s decision reviewed as follows:
- Request an internal review from the insurer directly. An option which is rarely successful as the insurer generally does not benefit from overturning their own decision
- Once the above has occurred, request a merit review from a delegate of the State Insurance Regulatory Authority (“SIRA”). The process involves providing written submissions and supplying supporting evidence. It is a daunting and complicated process which injured workers often get wrong without legal assistance. Few solicitors want to handle merit reviews as costs are capped at a maximum of $1,800
- Once the 1 and 2 have taken place, apply for a procedural review with the Workers Compensation Independent Review Office (“WIRO”). WIRO has not published any guidelines on how they conduct a procedural review
- Or a worker could file proceedings in the Supreme Court. This was never an option for many workers given the costs of litigation
The review process above is confusing, complex and unnecessarily burdensome on an injured worker.
The amendment in relation to Work Capacity Decisions
Once the new amendments commence, whilst the insurer can still make the above decisions, the injured worker will once again be able to apply to the Workers Compensation Commission (“the Commission”) to have that decision reviewed.
Most workers compensation solicitors agree that giving such power to an insurance company in the first place was fundamentally flawed as an insurer simply cannot be trusted to make unbiased decisions in relation to injured workers when their overriding purpose is to close claims and save money.
Thankfully order will finally be restored by our Members of Parliament who should never have allowed insurers to be able to make these decisions without workers being able to challenge them in a cost-effective and quick forum.
Your livelihood is important, so if you have been injured at work you should get timely advice from an experienced lawyer about your rights and entitlements. Our friendly team has many years of experience in workers compensation and other personal injury claims.
