In NSW Workers Compensation Claims, weekly payments for loss of wages are reduced by the worker’s “current weekly earnings”.
“Current weekly earnings” is not limited to amounts actually earned by a worker, it also includes “the weekly amount that the worker is able to earn in suitable employment”.
“Suitable employment” is defined in section 32A of the Workers Compensation Act and has been further explored in the case law. Generally, it is employment in work for which the worker is currently suited having regard to the available medical and other evidence about the worker’s incapacity and the worker’s age, education, skills and work experience. That work must be a real job that the worker is currently qualified for and medically fit to perform without modification.
It does not matter if the work is completely different to the pre-injury employment, is not within a reasonable travelling distance or or even if the work is not actually available.
A change in a Certificate of Capacity does not necessarily mean the worker is fit for suitable employment. However, an insurer will often arrange a vocational assessment to identify employment opportunities and then issue a work capacity decision reducing weekly payments by the wages payable in those jobs.
We can often overturn these decisions due to mistakes made by the insurer including:
Not identifying a real job that can be done without modification (eg. the role generally requires more hours than the worker is certified fit for or elements of the job are outside of the other medical restrictions).
Identifying a role that the worker does not currently hold qualifications for.
Failing to take into account medical evidence outside of the Certificate of Capacity.
If your weekly payments have been reduced or terminated following an insurer’s work capacity decision, you should get expert legal advice to find out whether the decision can be overturned.
We help injured workers get the compensation they deserve. Contact us for more information or book your free appointment here. We are IRO approved legal service providers which means there is no cost to you to investigate your claim.
DISCLAIMER: This blog is made available by Mortimer Fox Lawyers to give you general information and a general understanding of the law, not to provide specific legal advice. Unless otherwise stated, all information provided pertains to injuries sustained in or in connection with New South Wales. By using this blog you understand that there is no solicitor client relationship between you and Mortimer Fox Lawyers. This blog should not be used as a substitute for legal advice. If you require legal advice please contact us for an appointment.