Andrew Kemp Principal Kemp & Co Lawyers. Presented by Active OHS P: E: W:

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1 Andrew Kemp Principal Kemp & Co Lawyers Presented by Active OHS P: E: W:

2 Understanding existing recipient Jurisdiction of WCC in relation to work capacity decisions Reviews of Work Capacity Decisions Standing up to WIRO Review

3 Defined in clause 1 of Part 19H of Schedule 6 to the 1987 Act as follows: existing recipient of weekly payments means an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments. Workers, who are not existing recipients of weekly payments immediately prior to 1 October 2012, are required to have any entitlement to weekly payments of compensation, after 31 December 2012, assessed under the provisions of the Amended Act.

4 Decision of Arbitrator Jeffrey Phillips, SC in McAdam v Kororo Public School P&C Association [2013] NSWWCC 444, 26 November 2013 One needs to consider all the circumstances and also the history in order to arrive at a proper conclusion as to its meaning. The words immediately before were intended to ameliorate the effects of termination of such benefits on recipients of weekly benefits, particularly those who had been in receipt of such benefits for a long period of time. Question is what would be a reasonable period of time, considering the full circumstances of the Applicant. This has to be done on a case-by-case basis.

5 In receipt of weekly payments for more than 4 years. Weekly benefits ceased on 11 September In these circumstances, Arbitrator Jeffrey Phillips found that 19 days (11 September and 1 October 2012) is sufficiently close to 1 October 2012 to be immediately before. Immediately could extend as far as August 2012.

6 In the absence of a work capacity decision, the Commission retains its jurisdiction on the issue of capacity for work. Insurers wishing to remove the Commissions jurisdiction regarding capacity and any entitlement resulting from a finding of incapacity, should make a work capacity decision. Extends to extinguishing WCC s jurisdiction where there is an existing Award also.

7 A work capacity assessment is an assessment conducted by the insurer of a worker s current work capacity in accordance with Section 44A of the Workers Compensation Act Decision about: a worker s current work capacity what constitutes suitable employment for a worker the amount an injured worker is able to earn in suitable employment the amount of pre injury average weekly earnings or current weekly earnings 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, any other decision that affects a worker s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce weekly payments of compensation based on the points above.

8 Review by insurer Review by WorkCover Review by WorkCover Independent Review Office

9 A worker may request an internal review of a work capacity decision by the insurer after receiving a work capacity decision notice.

10 If a worker is not satisfied with the outcome of an insurer s internal review, or if the review is not completed within 30 days, the worker may apply for a merit review by the Authority.

11 If a worker is not satisfied with the outcome of a WorkCover merit review, the worker may lodge an Application for Procedural Review by the WorkCover Independent Review Officer (WIRO) within 30 days of receiving the merit review decision.

12 Section 44(1)(c) of the 1987 Act limits the scope of procedural review to a review only of: The insurer s procedures in making the work capacity decision and not of any judg[e]ment or discretion exercised by the insurer in making the decision. The main relevant consideration is not why a decision is made, but how it is made. Any demonstrable error on the part of the Insurer may invalidate the decision.

13 WorkCover Work Capacity Guidelines published 8 August 2013 are made pursuant to section 376(1) of the 1998 Act and Section 44A of the 1987 Act. They are intended to give guidance and instruction to insurers as to how to conduct reviews and make work capacity decisions.

14 5.2 of WorkCover Work Capacity Guidelines published 8 August 2013 : fair notice provision sets out the information which must be communicated to a worker at least two weeks prior to the work capacity decision. The insurer would have to make an assessment, or be in the process of making an assessment, and prior to the finalisation of that assessment and the subsequent making of a decision, at least two weeks notice must be given to the worker of the following matters: Inform the worker that a review of their current work capacity is being undertaken and that a work capacity decision is going to be made; An explanation that this review may include further discussions with other parties such as their employer, nominated treating doctor or other treatment providers; Advise the potential outcome of this review and detail the information that has led the insurer to their current position; Provide an opportunity for the worker to supply any further information to the insurer for further consideration and the date that this information is to be provided by; Tell the worker when this decision is expected to be made.

15 The notice requirement in Section 54 arises from a proposed variation in payments and therefore, the issue of notice may not arise in circumstances where no variation in payments results from a work capacity decision. Best Practice

16 WorkCover Work Capacity Guidelines published 8 August 2013: Paragraph 2.3: All decisions made in relation to a worker s recovery and work capacity should be timely, informed and evidence based. Decisions should be made and communicated in a transparent and robust manner free from preference and prejudice ensuring that effective outcomes are achieved and due process is followed. Decisions should be made in line with the Best Practice Decision-Making Guide. Guideline 5 concludes with Work capacity decision should be made in line with the Best Practice Decision-Making Guide. Guideline 5.1 says When making a work capacity decision the insurer should follow the Best Practice Decision Making Guide What is best practice is impossible to check given that there is no such document in existence as the Best Practice Decision-Making Guide. General compliance with the rules of natural justice, procedural fairness, and the timeframes which appear to be set out in relevant sections of the legislation.

17 The Guideline requires that the insurer communicates the above in a way that is appropriate in the circumstances of the case, and preferably by telephone or in person. Recent WIRO recommendations have identified that the workers compensation system has a majority of manual workers with limited education and a number of which English is not their first language. Written notification is identified as the most appropriate method to communicate such complex and important information and will also allow the insurer to show that the worker has been afforded procedural fairness.

18 The Work Capacity Decision Notice must: Reference the relevant legislation; Explain the relevant entitlement periods; State the decision and give brief reasons for making the decision; Clearly explain the line of reasoning for the decision; State the impact of the decision on the worker in terms of their entitlement to weekly payments, entitlement to medical and related treatment expenses and return to work obligations; Advise when the decision will take effect; Detail any support, such as job seeking support, which will continue to be provided during the notice period; Advise that any documents or information that have not already been provided to the worker can be provided to the worker on request to the insurer; Advise of the process available for requesting review of the decision and how to access the required form, Application for Review of a Work Capacity Decision by Insurer.

19 It follows that a breach of any single element must result in invalidity. Looks to protect a worker who might otherwise be seriously disadvantaged financially as a result of an error/errors made by an insurer. Example: We can confirm that the work capacity decision only relates to your entitlements to weekly benefits and does not affect other entitlements that you may be entitled to under the Act. Did not address the fact that the Applicant s medical treatment benefits would cease to be paid twelve months after the cessation of weekly benefits. Found to be unfair and not a valid notice issued under Section 43.

20 Andrew Kemp Kemp & Co Lawyers Level 3, 7 Bridge Street SYDNEY NSW 2000 Phone: andrew.kemp@kempandco.com.au