Work capacity decisions
A work capacity decision is a decision made by a Claims Service Provider throughout the claim to confirm the amount of weekly payments.
These decisions may not always change the amount of weekly payments, but could increase, decrease, or stop payments. The worker will have the opportunity to provide information that they want considered in the decision-making process.
Please note: If your employee is an exempt worker in a NSW Government Agency, work capacity decisions do not apply to them.
On this page
When a work capacity decision may be made
Work capacity decisions determine any one or a combination of the following
Information the Claims Service Provider may rely on
Notice period of a work capacity decision
Support throughout the process
Weekly payments after 130 weeks
Exempt workers earning capacity assessments (Treasury Managed Fund)
When a work capacity decision may be made
Whilst a work capacity decision can be made at any point throughout the life of your claim, there are specific points when the Claims Service Provider must make a work capacity decision. These include:
- Within the first seven days after the Claims Service Provider is notified of the injury (unless a reasonable excuse applies). This is completed to determine the amount of pre-injury average weekly earnings (PIAWE). Another decision may occur after this time if new information is received that supports a change to the amount of PIAWE
- At least once between 78 and 130 weeks of payments, and again at least every two years thereafter
- As circumstances change and/or new information is received about the worker's capacity to work that may affect their weekly payments.
A work capacity decision is likely to be made when
- new information has been received about the amount of PIAWE
- the worker's capacity for work changes
- the worker has the ability to work in suitable employment.
Work capacity decisions determine any one or a combination of the following
- worker's current work capacity
- what is considered suitable employment for the worker
- what the worker can earn in suitable employment
- pre-injury average weekly earnings (PIAWE) or current weekly earnings
- whether the worker can engage in certain employment without risk of further injury
- any other decision that may impact entitlement to weekly payments of compensation.
Information the Claims Service Provider may rely on
The information relied on will vary depending on the type of work capacity decision.
To accurately determine pre-injury average weekly earnings (PIAWE), your Claims Service Provider will likely request information from yourself and the worker which will be used to inform a work capacity decision. This may include:
- payslips
- award rate (if applicable)
- tax returns
- group certificates
- statement of income.
This information may also be used in a work capacity decision.
To understand the worker's capacity to function day to day and their psychological ability to complete tasks that are necessary for work, the Claims Service Provider will look to information provided via:
- Certificates of Capacity completed by the nominated treating doctor
- medical reports from the psychologist or psychiatrist
- functional reports completed by an accredited rehabilitation provider
- any other specialist reports such as those from an Injury Management Consultation (IMC) or an Independent Medical Examination (IME).
To understand the worker's vocational ability the Claims Service Provider will consider the following types of information:
- payslips or evidence of earnings, if they're already working
- a vocational assessment and/or labour market analysis. This is a report completed by an accredited workplace rehabilitation provider that explores vocations suited to the worker and how much they may be able to earn in those roles in the open labour market
- medical confirmation that the role/s identified are suited to the worker
- evidence of return to work support provided or offered to the worker by a workplace rehabilitation provider. This could include return to work plans, workplace assessments, job seeking support, utilisation of any SIRA (State Insurance Regulatory Authority) Vocational Program or any other relevant reports.
- Any other evidence to support the worker's vocational abilities.
Notice period of a work capacity decision
For work capacity decisions where there is an increase or no change to weekly payments, the decision will come into effect immediately.
When a work capacity decision is made that reduces or stops weekly payments, the Claims Service Provider will provide a notice period:
- If the decision is made before 12 continuous weeks of payments have been paid, the worker will receive seven days' notice to allow time for the decision to be posted.
- If the decision is made after 12 continuous weeks of payments, the worker will receive seven days' allowance for the post plus a minimum notice period of three calendar months.
Your Claims Service Provider will speak to you if this applies to your worker.
Back to top ⇡Support throughout the process
Your worker can still receive support from their workplace rehabilitation provider to help them look for work. They may also have access to SIRA Vocational Program such as retraining or equipment.
If your worker feels they need more assistance to help them progress with a return to work, they can speak with the Claims Service Provider.
Learn more about SIRA-funded programs
Your Claims Service Provider can also help your worker to connect with services in their community and make sure they have access to reasonably necessary medical treatment.
Weekly payments after 130 weeks
Dispute pathways
If the worker does not agree with the decision made by the Claims Service Provider, they are entitled to request a review of the decision by either:
- requesting a review by the Claims Service Provider by completing an application for internal review form
- lodging a dispute directly with the Personal Injury Commission (PIC).
Exempt workers earning capacity assessments (Treasury Managed Fund)
Work capacity decisions do not apply if your employee is an exempt worker in a NSW Government agency.
An assessment of their ability to earn can be conducted if fit for suitable employment, under section 40A of the Workers Compensation Act 1987. It helps ensure the worker's weekly pay amount is aligned with their current earning capacity.
The assessment will include a review of functional capacity and vocational options, and the claim service provider will consider the labour market conditions.
Once the assessment is complete, the difference between the pre-injury gross wages and the assessed post-injury gross earning capacity is calculated, and the worker will then receive the difference between these amounts up to the statutory rate.
The Claims Service Provider may decide to reduce or discontinue weekly payments after the assessment and information regarding:
- the worker's ability to earn, or
- whether or not they have capacity for work exceeding their current working hours.
The Claims Service Provider will notify the worker of the reasons for the reduction or discontinuation and provide them with a sufficient notice period.
Notice period
The required notice depends on how long they have received weekly payments:
- if the worker has received weekly payments for a continuous period of at least 12 weeks but less than one year, two weeks' notice is required
- if the worker has received weekly payments for a continuous period for one year or more, six weeks' notice is required.
Learn more about exempt workers
