Work capacity decisions

A work capacity decision is a decision made by a Claims Service Provider throughout your claim to confirm the amount of your weekly benefit payments.

These decisions may not always change the amount of your weekly payments, but could increase, decrease, or stop your payments. You will have the opportunity to provide information that you want considered in the decision-making process. Your case manager will speak to you about how and when this may affect you.

Please note: If you are an exempt worker in a NSW Government Agency, work capacity decisions do not apply to you. An earning capacity assessment may be conducted.

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 your injury (unless a reasonable excuse applies). This is completed to determine the amount of your 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 your 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 your capacity to work that may affect your weekly payments.

A work capacity decision is likely to be made when

new information has been received about the amount of your PIAWE
your capacity for work changes
you have the ability to work in suitable employment.

Work capacity decisions determine any one or a combination of the following

current work capacity
what is considered suitable employment for you
what you can earn in your suitable employment
pre-injury average weekly earnings (PIAWE) or current weekly earnings
whether you 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 your pre-injury average weekly earnings (PIAWE), your Claims Service Provider will likely request information from you and your employer which will be used to inform a work capacity decision. This may include:

payslips
your award rate (if applicable)
tax returns
group certificates
statement of income.

This information may also be used in a work capacity decision.

To understand your capacity to function day to day and your 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 your nominated treating doctor
medical reports from your 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 your vocational ability the Claims Service Provider will consider the following types of information:

payslips or evidence of earnings, if you are 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 you and how much you may be able to earn in those roles in the open labour market
medical confirmation that the role/s identified are suited to you
evidence of return to work support provided or offered to you 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 your vocational abilities.

Notice period of a work capacity decision

For work capacity decisions where there is an increase or no change to your weekly payments, the decision will come into effect immediately.

When a work capacity decision is made that reduces or stops your weekly payments, your Claims Service Provider will provide you with a notice period:

If the decision is made before 12 continuous weeks of payments have been paid to you, you will receive seven days' notice to allow time for the decision to be posted to you.
If the decision is made after 12 continuous weeks of payments, you 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 about if or when this may affect you.

Support throughout the process

You can still receive support from your workplace rehabilitation provider to help you look for work. You may also have access to SIRA Vocational Program such as retraining or equipment.

If you feel you need more assistance to help you progress with a return to work, speak with your Claims Service Provider to let them know.

Learn more about SIRA-funded programs

Your Claims Service Provider can also help you connect with services in your community and make sure you have access to reasonably necessary medical treatment.

Weekly payments after 130 weeks

Entitlement to ongoing weekly payments after 130 weeks for workers that are not high needs
An entitlement to weekly payments after 130 weeks is only available to a worker assessed by a Claims Service Provider as having current work capacity if the following special requirements are met as required by section 38 of the Workers Compensation Act 1987:
1. The worker has applied to their Claims Service Provider in writing at/or after receiving 78 weeks of weekly payments
2. The worker has returned to work 15 hours or more per week and is in receipt of current weekly earnings as prescribed by SIRA (indexed annually)
3. The worker is assessed by the Claims Service Provider as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
Entitlement to ongoing weekly payments after 130 weeks for workers that are high needs
Entitlement to weekly payments after 130 weeks is only available to workers with high needs* assessed by the Claims Service Provider as having current work capacity.

The worker must apply to their claims service provider to continue to receive weekly payments. The application must be in writing at or after receiving 78 weeks of weekly payments, as required by section 38 of the Workers Compensation Act 1987.

*A worker with high needs is:
- A worker whose injury has resulted in permanent impairment of more than 20 per cent, or
- A worker whose degree of permanent impairment is pending because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable.
If you wish to claim weekly payments after 130 weeks
Your Claims Service Provider will send you an application form for continuation of weekly benefits after 130 weeks.

You will need to complete and return this form, along with any information you want to be considered. This application will be assessed based on the information available.

Your Claims Service Provider will then contact you to let you know if your application has been accepted or rejected.

If rejected:
1. You will receive an explanation as to why the Claims Service Provider has found that the special requirements to continue to receive weekly payments after 130 weeks have not been met.
2. Your weekly payments will stop when you have received 130 weeks of weekly payments.

Dispute pathways

You have the right to ask for a review if you disagree with a work capacity decision made by the Claims Service Provider.

There are two main ways that you can request a review. You can:

Request a review by your Claims Service Provider by completing an application for internal review form. This review must be completed by your Claims Service Provider within 14 days. Your Claims Service Provider will attach this form to the work capacity decision or you can ask for one to be sent to you, or
Lodge a dispute directly with the Personal Injury Commission (PIC).

Exempt workers earning capacity assessments (Treasury Managed Fund)

Work capacity decisions do not apply if you are an exempt worker in a NSW Government agency.

An assessment of your ability to earn can be conducted if you are fit for suitable employment, under section 40A of the Workers Compensation Act 1987. It helps ensure your weekly pay amount is aligned with your current earning capacity.

The assessment will include a review of your functional capacity and vocational options, and the claim service provider will consider the labour market conditions.

Once the assessment is complete, the difference between your pre-injury gross wages and the assessed post-injury gross earning capacity is calculated, and you 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:

your ability to earn, or
whether or not you have capacity for work exceeding your current working hours.

The Claims Service Provider will notify you of the reasons for the reduction or discontinuation and provide you with a sufficient notice period.

Notice period

The required notice depends on how long you have received weekly payments:

if you have received weekly payments for a continuous period of at least 12 weeks but less than one year, two weeks' notice is required
if you have received weekly payments for a continuous period for one year or more, six weeks' notice is required.

Learn more about exempt workers

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Workers Insurance

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