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Concerned about a work capacity decision?

What is a work capacity decision?

Work capacity decisions are decisions made by an insurer. Insurers can make work capacity decisions at any point in time. A work capacity decision is a decision by an insurer about whether an injured worker can work, for how long, at what type of work which has an impact on the types of entitlement that worker may receive.

Injured workers have the right to ask the insurer for an internal review of their work capacity decision. If they disagree with the decision, they can ask for a merit review by SIRA. If the worker is still not happy, WIRO can conduct a review of the insurer’s procedures, which is a review of the insurer’s original work capacity decision.

Step 1: internal insurer review

You have the right to ask the insurer to review a decision that it has made about your work capacity. You should make this request by completing an Application for a review by insurer. This form must be provided to your insurer as soon as you can.

Step 2: Merit Review Service

If you are not happy with the outcome, you have the right to ask SIRA for a review of the merits of the decision. You should make this request by completing the Application for merit review by the authority and provide it to SIRA within 30 days after receiving the insurer’s decision.

You may seek assistance from a legal practitioner regarding an application for merit review by SIRA. The insurer is liable to pay costs for legal advice given in connection with an application for merit review of a work capacity decision from 16 December 2016.

Please note, legal costs will not be payable if you seek legal advice more than 30 days after you were notified of the internal review decision.

Step 3: WIRO procedural review

If your issue is still not resolved, you have the right to ask WIRO to review the insurer’s procedures in making the work capacity decision. You should make this request by completing the Application for procedural review of work capacity decision. An application for procedural review must use this approved form. otherwise WIRO will not consider the application to be valid, pursuant to the Workers Compensation Act 1987. You must also provide these details within 30 days after receiving SIRA's merit review decision or your application will not be valid.

Once you have completed the application for procedural review scan and send the form to WIRO at contact@wiro.nsw.gov.au.

Any decision made by WIRO is binding.

What information do I need to provide?

You should include any information that you think supports your reason for disagreeing with the decision. This may include information such as:

  • Medical reports
  • Reports from your rehabilitation provider
  • Report from your employer
  • Training assessments

You can include additional material that was not considered by the insurer during its initial assessment.

Who can help with your application?

You can get help from anyone including:

  • Your insurer
  • A union representative
  • An interpreter
  • Your employer
  • Your legal representative
  • A support person

You can contact a lawyer to seek assistance to complete your review forms. If your lawyer agrees to assist, he or she is not allowed to charge you for any work that you ask them to do for you regarding decisions of insurers about your capacity to work.