A work cap road map?
Case gives guidance on the Work Cap under NSW Workers Compensation Commission decision.
The first Work Capacity Decisions (WCD) under the jurisdiction of the NSW Workers Compensation Commission (WCC) have commenced being published.
Whilst it is very early days, the decision of Stefanac v Secretary, Department of Family and Community Servicesprovides some potential guidance around what a road map for a work cap could be: a WCD likely to be found to be robust, soundly based and, ultimately, capable of being upheld at the WCC.
Simply put, a WCD is a decision made by an insurer that affects the amount of weekly compensation payments an injured worker receives.
In the matter of Stefanac, the insurer’s decision was one which reduced or ceased the weekly compensation payments of the worker. The insurer determined the injured worker was capable of working in suitable employment that was close to or exceeded their weekly entitlement of 80% of their PIAWE.
The arbitrator agreed, finding the worker could work in suitable employment with no ongoing entitlements to weekly compensation (para 29).
Whilst being mindful that this is one of the first decisions of the WCC, elements of the decision stand out.
Suitable employment
The pre-injury role of the injured worker was a case worker (para 3). The insurer decided suitable employment was as an admin officer (para 7). Without knowing the education, training and skills of the worker, this role seems a logical choice. Ultimately, the arbitrator chose a different, higher paying role as suitable employment (para 29) but there was no arbitrator criticism of the insurer’s decision.
Capacity for work in suitable employment
The insurer appears to have relied on the certificate of capacity issued by the nominated treating doctor (NTD) when it was determining the amount of work per week the injured worker could do (inferred throughout the decision such as para 26).
Treating doctor endorsement of the suitable employment
The insurer had sought and received endorsement from the NTD that the injured worker could functionally manage the suitable employment (para 10).
Many will recognize the features above as somewhat consistent with how the WCC used to consider the old section 40 ability to earn calculations, prior to the 2012 amendments.
Personally, I found as I read the decision that there was little to argue with. Obviously, that is the ideal when an insurer makes an adverse decision; making a decision that ‘makes sense’, seems logical and is fair. In my personal view, this WCD did, and it is potentially why the arbitrator had no hesitation upholding it.
Again, this is only the first of many WCDs that will end up in the WCC. I wouldn’t be surprised though to see arbitrators supporting future work caps applying a similar road map: having a logical suitable employment choice, relying on the treating evidence about capacity for work and having endorsement from the NTD about the functional suitability of the role.
Please note this does not constitute legal advice and are my own personal thoughts and not those of my employer.