Work capability assessments in NSW employees compensation – Half Two – Employment and HR


In our previous article, we examined a work ability decision under the NSW Employee Compensation Act.

This article deals with a work capacity assessment.

Then what is a work capacity rating?

It is simply an assessment of the worker’s ability to work. It reviews the functional, occupational and medical limitations of the employee and can occur every two years or at any stage of the claim. As you will see below, a WCD takes into account more than just capacity, but also employment in general, age, skills and work experience. If an employee is assessed as having greater than 30% impairment for the whole person, it is important that an employee’s ability to work is not assessed unless the employee requests it or it is “appropriate” to do so.

44A Assessment of work capacity

(1) An insurer must carry out an assessment of the ability to work of an injured employee if this is required under this Act or the guidelines on employee compensation, and can carry out an assessment of the ability to work at any other point in time.

(2) A “Work Capacity Assessment” is an assessment of the current work capacity of an injured worker, conducted in accordance with the Employee Compensation Policy.

(3) An assessment of the ability to work is not required for the insurer’s decision on the ability to work.

(4) An insurer may not carry out an assessment of the work ability of an employee with the highest needs, unless the insurer deems it appropriate and the employee requests it.

(5) In accordance with the guidelines on employee compensation, an insurer may require an employee to take part in an assessment that is reasonable for carrying out an assessment of the ability to work. Such an assessment may include an examination by a doctor or other healthcare professional.

(6) If an employee refuses to participate in an evaluation under this section or if the evaluation does not take place because the employee does not participate properly, the employee’s right to weekly payments shall be suspended until the evaluation has taken place.

Suitable employment

Once an employee’s ability to work has been assessed, a decision about their ability to work usually follows. The focus of a WCD and the evidence it relies on, such as: B. occupational assessments will largely aim to determine whether a worker is fit for “suitable employment” (Section 32A of the 1987 Act).

A hands-on exercise must be performed when considering Section 32. This includes an assessment of the employee’s incapacity for work, age, education, skills and work experience. This does not include taking into account work capacity, ie not taking into account what can be achieved in the open labor market. It should be assessed whether “suitable employment” is employment that is real, may be available and takes into account the criteria of Section 32A (a) (i) – (v) below.

32A Definitions:

“suitable employment” in relation to an employee means employment in a job for which the employee is currently suitable.

(a) taking into account

i) the nature of the employee’s incapacity for work and the information contained in the medical information, including, but not limited to, an employee-provided capacity certificate (as specified in Section 44B), and

(ii) the age, education, skills and work experience of the worker and

(iii) any plans or documents prepared as part of the return to work planning process, including an Injury Management Plan under Chapter 3 of the 1998 Act; and

(iv) all vocational rehabilitation services that are or have been provided for or for the employee, and

(v) other matters set out in the Employee Compensation Policy, and

(b) regardless of

(i) whether the work or employment is available, and

(ii) whether the work or employment is of a type or type that is generally available in the labor market, and

(iii) the nature of the worker’s employment prior to his injury and

(iv) the worker’s place of residence.

The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.

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