WIRO Decisions - Tips and traps for Work Capacity Decisions (WCDs)

Since March 2013, WIRO has delivered and published more than 80 decisions arising from procedural review of insurers’ Work Capacity Decisions (WCD).  All decisions can be found on the WIRO website (www.wiro.nsw.gov.au), but it is instructive to review these decisions and how they (invariably) find error in the wording of WCDs.  In each case, this results in a binding recommendation that weekly payments be reinstated and that a fresh (and compliant) WCD be prepared.  What can be learned from a review of these decisions?

A written advice of a work capacity decision and its outcome (WorkCover Guidelines 5.3.2) must comply with the following requirements:

• Reference the relevant legislation – identifying relevant sections and their application, how weekly compensation entitlement is calculated under the new provisions
• Explain the entitlement periods
• State the decision and the reasons underpinning it
• Outline all relevant evidence – not just that which supports the decision
• Explain the line of reasoning – how does the material support the decision?
• State the impact of the decision – not just on weekly payments (see below also)
• Advise the relevant notice requirements
• Identify the date of the work capacity assessment
• Advise when the decision will take effect
• Identify the support that will continue during the notice period – ie. job seeking support
• Identify documents not yet provided to the worker
• Advise the worker of the process, and documents, available to review the WCD – application for internal review by an insurer

It is clear from reading the WIRO decisions that strict compliance with the Guidelines is essential, and that the WIRO delegates are closely examining WCDs for signs of non-compliance.  Indeed, in one decision [No. 25 of 2013] it was said that there was no obligation on the worker, in seeking procedural review, to identify specific grounds for review.  The absence of any articulation of where the WCD was deficient did not prevent the WIRO delegate undertaking that task.

In 2014 decisions, WIRO has also taken the view that all WCDs made before the introduction of the new Guidelines (which came into effect on 11 October 2013) could not have been compliant because the old Guidelines referred to the non-existent Best Practice Decision-Making Guide.  But with an eye to the future, and in accordance with the new Guidelines, what have we learned from WIRO decisions to date?

Many WIRO decisions have concentrated on the following key issues:

Postal delivery

The need to allow 4 days (on top of the 3 month notice period before a WCD can take effect) for postal delivery is critical.  The better advice is to allow 3 months plus 1 week from the date of the WCD until it takes effect.

Referencing the relevant legislation accurately

WCDs have been found as invalid for having incorrectly or inaccurately cited sections of the legislation.  It is not sufficient to simply quote the section, and it would be advisable to identify, for example, section 54 (the Notice provision) as section 54 of the Workers Compensation Act 1987. 

Current work capacity

Whilst section 43 speaks of a decision by an insurer about a worker’s current work capacity [section 43(1) (a)], the definition of “current work capacity” is to be found in section 32A of the Workers Compensation Act 1987, and should be referenced accordingly.

Further medical assessments

IME assessments arranged for a date after the WCD, have been interpreted by WIRO as meaning that a decision was made before the assessment was complete, thereby invalidating the WCD.  The regulations also require that a WCD be made as soon as practicable after the work capacity assessment, again highlighting the need to identify the date of the assessment.  The WCD must identify the date of the work capacity assessment, again highlighting the requirement for the assessment process to have an end date.

Impacts on medical expenses

Failure to adequately (or in some instances incorrectly) explain the impact of the decision, insofar as section 60 expenses are concerned, is frequently highlighted in many WIRO decisions.  This is a clear reference to the operation of section 59A, in particular sub-sections (2) & (3):

• 59A(2) – medical and treatment expenses are not payable more than 12 months after the worker ceases to be entitled to weekly benefits;
• 59A(3) – if a worker becomes entitled in the future to weekly benefits (ie. in the event of work injury related surgery – see section 41), then they are entitled again to section 60 expenses.

It is important all correspondence to the worker, including the WCD and the outcome of an internal insurer review, accurately state (in a consistent manner) the operation of these provisions.

Summary

It is evident from a review of WIRO decisions that any error on the part of the insurer in the drafting of a WCD can invalidate the decision, even when the worker does not identify the specific breach in their application for procedural review.  There have been instances where the WIRO delegate has found non-compliance in circumstances where the worker has not identified the error in his or her application for procedural review. 

In practice:

• Work your way methodically through the Guidelines to ensure compliance;
• Be very clear in the use of language to explain the decision, its consequences and the steps available to the worker to seek review, including timeframes and documents; and
• Identify those sections of the legislation relied upon in specific terms.

Author: Gary Forster