Key Takeaways

When determining work capacity decision disputes, the Commission will delicately balance the injured worker’s functional capacity and experience with any suitable employment options identified by an insurer.

It is important that the evidence regarding capacity matches evidence of a real job on the labour market. Medical evidence regarding capacity to work is essential.

Detailed transferrable skills or vocational assessments are desirable to support a decision regarding whether a worker is suitably qualified for an employment option identified.

Brief Facts and Judgements

Bokan v Coles Supermarkets Australia Pty Ltd (NSWCCR 2020)

The injured worker sustained a right ankle injury on 9 July 2015 while working in the deli section of a Coles’ store. A work capacity decision was issued on the basis that the injured worker had a capacity to work and was not entitled to ongoing payments in accordance with s38(3) of the Workers Compensation Act 1987. The injured worker ran the argument that he did not have a capacity to work because there was no suitable employment available to him.

The Registrar’s Delegate found that the injured worker had a capacity to work with functional restrictions. He was persuaded by the certificates of capacity from the injured worker’s treating doctors, as well as the IME report commissioned by the self-insurer. The injured worker provided a statement that he had no capacity to work, but that statement was not enough to overcome the medical evidence available.

The rehabilitation provider identified that the injured worker was qualified to work as a customer service representative based on a transferral skills analysis and labour market assessment. The Registrar’s Delegate noted that the rehabilitation provider, although not an ‘expert’ in the common sense of the word, matched the injured worker’s functional restrictions with real jobs on the labour market.

Ultimately, the Registrar’s Delegate declined to make an interim payment direction.

Kochel v Ready Workforce (a Division of Chandler Macleod) Pty Ltd (NSWWCCR 2020)

The injured worker sustained a left knee injury on 18 February 2020 while working as a picker and packer. A work capacity decision was issued on the basis that the injured worker had a current capacity to work and could work as a despatching and receiving clerk, warehouse administrator or administration officer.

The Registrar’s Delegate was satisfied that the medical evidence supported the decision that the injured worker had a capacity to work.

The injured worker argued that the roles identified by the insurer were not suitable because he did not have the required computer skills or experience in the roles identified. The Registrar’s Delegate noted that the injured worker was 21 years old, and had completed high school including Certificates in Outdoor Recreation, Tourism, and Process and Manufacturing. She was convinced that the injured worker was competent with computers.

Further, the Registrar’s Delegate commented that the fact that the injured worker had limited experience in the roles identified was not fatal to the employer’s case. This was because the vocational assessment confirmed that formal qualifications or industry experience were not a prerequisite for employment in the roles identified by the insurer.

In this case, the Registrar’s Delegate declined to make an interim payment direction.

Hall v Crew Services Group Australia Pty Ltd (NSWWCCR 2020)

The injured worker sustained a left knee injury on 3 April 2019 while working as a merchandiser. A work capacity decision was issued on the basis that the injured worker had a current capacity to work and could work as a receptionist, concierge or call contact centre operator.

The Registrar’s Delegate was satisfied that the injured worker had a capacity to work. The worker’s general practitioner, physiotherapist and treating surgeon, as well as the injured worker’s independent medical examiner, agreed that the injured worker was fit to work with restrictions.

The injured worker left school in year 11 and did not obtain any trade qualifications. She however had eight years’ of experience in customer service and hospitality roles since she left school. The Registrar’s Delegate noted that the roles identified by the insurer were entry-level positions and qualifications or industry experience was not required to perform these roles.

In the end, the Registrar’s Delegate declined to make an interim payment direction.

Implications

This is an area where we are slowly seeing more decisions come out of the Commission to give insurers guidance regarding issuing work capacity decisions. These decisions are key reminders that a sound work capacity decision should be based on clear medical evidence of a capacity to work and clear evidence matching any functional restrictions with real jobs.

It is not essential that the injured worker has direct experience in these roles, although direct experience is desirable. If the injured worker does not have direct experience, the roles identified will need to be entry-level positions where it is feasible that a real employer would hire the injured worker.