1
Note: All Optional Paragraphs have been included in the body of the letter below.
A determination must contain either 1a or 1b and either 2a, b, c or d.
18/06/2010
Worker
Worker Address
Dear Worker
RE:EMPLOYER:Employer Name
CLAIM NO:0000000/02
Date of INJURY:01/01/2007
I write to advise that I am required to assess your entitlement to weekly payments as outlined in the Act*, which you may have heard referred to as a work capacity review.
(Optional paragraph 1a)
It is anticipated that you will reach the end of your third entitlement period in the week ending 25/06/2010 and as such I have assessed your entitlement to weekly payments under section 35B(1) of the Act*. Your third entitlement period is explained in the extract of the Act included with this letter – see section 35(8) of the Act*.
(Optional paragraph 1b)
You passed the end of your third entitlement period in the week ending 20/04/2009 and as such I have assessed your entitlement to weekly payments under section 35B(1) of the Act*. Your third entitlement period is explained in the extract of the Act included with this letter – see section 35(8) of the Act*.
Decision:
I have determined that you have a current work capacity and as a result your weekly payments will stop in accordance with sections 35B(1) and 36(1)(i) of the Act.
(Optional paragraph 2a)
As you were not in employment immediately before the end of your third entitlement period, and were in receipt of weekly payments on the basis of having no current work capacity at that time, I am giving you 13 weeks notice before weekly payments are stopped pursuant to section 35B(6) of the Act* and therefore your weekly payments will cease 13 weeks after you receive this decision.
(Optional paragraph 2b)
As you were in employment immediately before the end of your third entitlement period and were in receipt of weekly payments on the basis of having a current work capacity at that time, I am giving you 28 daysnotice before weekly payments are stopped pursuant to sections 36(3a)(bb) and 36(3b)(b) of the Act and therefore your weekly payments will cease 28 days after you receive this decision.
(Optional paragraph 2c)
As you are not in employment and are in receipt of weekly payments on the basis of having no current work capacity at this time, I am giving you 13 weeks notice before weekly payments are stopped pursuant to section 35B(6) of the Act and therefore your weekly payments will cease 13 weeks after you receive this decision.
(Optional paragraph 2d)
As you are in employment and are in receipt of weekly payments on the basis of having a current work capacity at this time, I am giving you 28 daysnotice before weekly payments are stopped pursuant to sections 36(3a)(bb) and 36(3b)(b) of the Act and therefore your weekly payments will cease 28 days after you receive this decision.
STATEMENT OF REASONS FOR DECISION.
This statement of reasons for decision explains why I made this decision.
1. Issue for decision
For you to continue to have an entitlement to weekly compensation after the end of the third entitlement period - section 35(8)(c) of the Act*, I need to assess that you:
- have no current work capacity; and
- are likely to continue indefinitely to have no current work capacity - section 35B(1) of the Act*.
- The Decision
That you have a current work capacity and as a result your weekly payments will stop in accordance with sections 35B(1), and 36(1)(i) of the Act*.
- How I reached this decision
In reaching this decision, I reviewed your claim file and considered the information in these documents, copies of which are enclosed:
- Your claim for compensation dated 01/01/2007
- Report(s) from Dr Doctor dated 01/03/2010.
- Medical certificates issued by treating medical practitioners.
- Allied health reports provided by Provider
- .
I have based my determination on the following:
a)Detail Vocational Information:
b)Detail Medical Information.
The information referred to demonstrates that you have a current work capacity. Although you are unable to undertake your pre-injury employment as a Truck Driver,you have the capacity to work as a Kitchen Hand. Accordingly you cannot meet the criteria in section 35B(1) of the Act and are therefore not entitled to continuing weekly compensation.
Extracts of the sections of the Act referred to in making this decision are included with this letter.
APPLICATION UNDER SECTION 35C
If you are in employment and you consider that because of your compensable disability you are, and are likely indefinitely to be, incapable of undertaking further or additional employment or work which would increase your current weekly earnings – section 35C, you may apply to Employers Mutual for a determination that your top up compensation payments continue. Contact your Case Manager if you wish to make an application for your payments to continue or you can obtain a written application on WorkCover’s website which you can complete and send to your Case Manager.
REVIEW RIGHTS:
If you disagree with the above decision, you may apply for a review under Section 90 of the Act*. (Further information about the Dispute Resolution Process is attached.) To apply, you must file a completed Notice of Dispute within one month of your receiving the decision (this letter) - unless the Tribunal allows an extension of time - and clearly set out the reasons for the dispute. A Notice of Dispute form is available from the Tribunal, most trade unions or employer organisations and must be filed at the following address:
Registrar
Workers Compensation Tribunal
6th Floor, Riverside Centre
North Terrace
Adelaide SA 5000
Phone: (08) 8207 1089 or
APPLICATION TO RECOMMENCE WEEKLY PAYMENTS
Once you have lodged an appeal against the decision with the Workers Compensation Tribunal, you may write to the WorkCover Ombudsman and ask for the weekly payments to be reinstated until the dispute before the Workers Compensation Tribunal is resolved or until the Tribunal orders that the payments cease. If it appears to the WorkCover Ombudsman that the decision is not reasonably open, the WorkCover Ombudsman may suspend the operation of the decision and your payments will recommence for the duration of your appeal before the Workers Compensation Tribunal.
Should you decide to contact the WorkCover Ombudsman on this matter, you will need to provide a copy of your Notice of Dispute that you have lodged with the Workers Compensation Tribunal together with the Decision (this letter). The WorkCover Ombudsman’s contact details are:
The Office of the WorkCover Ombudsman
GPO Box 2343 Adelaide SA 5001
Office: Level 6, Chesser House Free call: 1800 195 202
91 – 97 Grenfell StreetFacsimile: (08) 8204 2169
DX56201 AdelaideWeb:
Adelaide SA 5000 Email:
Further information may be found on WorkCover’s website
Please contact me on if you would like any further information in relation to this matter. Enclosed is a pamphlet from Centrelink including a 1800 number. You may wish to contact this number to discuss entitlements to benefits through them.
Yours faithfully,
Patricia Apostolides
Case Manager
Direct line:(08)8127 1313
Email: @employersmutualsa.com.au
Below is some information regarding your review rights and the extracts of the Act referred to in this letter.
REVIEW RIGHTS
Reviewable Decisions
Any person who is directly affected by and dissatisfied with a decision that is reviewable such as:
-a decision on a claim for compensation;
-a decision in relation to the nature of rehabilitation services provided for a worker;
-a decision to vary, suspend or discontinue weekly payments;
-a decision on an employer application to have weekly payments reviewed;
-a decision to disallow a charge for a service under section 32
may apply to the Workers Compensation Tribunal (the Tribunal) for a review of that decision.
Notice of Dispute
A Notice of Dispute must be made on the prescribed form and should set out clearly the reasons for the dispute. A Notice of Dispute is available from the WorkCover Corporation, Tribunal or most trade unions or employer organisations. Notices of Dispute must be lodged within one month of receiving the decision, unless the Tribunal allows an extension of time.
Reviews
Following receipt of a Notice of Dispute by the Tribunal, the Notice will be sent to the decision-maker for reconsideration of the decision in dispute. Where the reconsideration fails to resolve the matter, the Tribunal will contact the parties involved in an attempt to resolve the dispute by conciliation. Where the dispute cannot be resolved by conciliation, the Notice of Dispute will be referred for judicial determination.
Workers Compensation Tribunal
Forms are available from the Registrar, Workers Compensation Tribunal; 6th Floor, Riverside Centre;
North Terrace Adelaide; Phone (08) 8207 1089.
Advice and Representation
If you are unhappy about a decision on your claim, please discuss any issues with your case manager.
If, after discussing your issues with your case manager, you want independent advice or representation regarding this decision it can be obtained by contacting your union or solicitor. If you do not have a solicitor and feel you need that level of representation the Law Society of SA Referral Service (telephone (08) 8229 0288) can provide information regarding specialist workers compensation solicitors.
EXTRACTS FROM THE ACT
Section 3 (relevant definitions)
current work capacity, in relation to a worker, means a present inability arising from a compensable disability such that the worker is not able to return to his or her employment at the time of the occurrence of the disability but is able to return to work in suitable employment;
no current work capacity, in relation to a worker, means a present inability arising from a compensable disability such that a worker is not able to return to work, either in his or her employment at the time of the occurrence of the disability or in suitable employment;
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:
(a)the nature of the worker's incapacity and previous employment;
(b)the worker's age, education, skills and work experience;
(c)the worker's place of residence;
(d)medical information relating to the worker that is reasonably available, including in any medical certificate or report;
(e)if any rehabilitation programs are being provided to or for the worker;
(f)the worker's rehabilitation and return to work plan, if any;
Section 35
(1)Subject to this Act, where a worker suffers a compensable disability that results in incapacity for work, the worker is entitled to weekly payments in respect of that disability in accordance with this Division.
(2)Weekly payments are not payable under this Division in respect of a period of incapacity for work falling after the date on which the worker reaches retirement age.
(3)However, if a worker who is within 2 years of retirement age or above retirement age becomes incapacitated for work while still in employment, weekly payments are payable for a period of incapacity falling within 2 years after the commencement of the incapacity.
(4)A worker is not entitled under this Division to receive, in respect of 2 or more disabilities, weekly payments in excess of the worker's notional weekly earnings.
(5)If a liability to make weekly payments is redeemed, the worker is taken, for the purposes of this Division, to be receiving the weekly payments that would have been payable if there had been no redemption.
(6)Subject to subsection (7) (and any other relevant provision of this Act) a reference in this Division to a worker making "every reasonable effort to return to work in suitable employment includes any reasonable period during which—
(a)the worker is waiting for a response to a request for suitable employment made by the worker and received by the employer; and
(b)if the employer's response is that suitable employment may or will be provided at some time, the worker is waiting for suitable employment to commence; and
(c)if the employer's response is that suitable employment cannot be provided at some time, the worker is waiting for a response to requests for suitable employment from other employers; and
(d)the worker is waiting for the commencement of a rehabilitation and return to work plan, after approval has been given.
(7)A worker must not be treated as making "every reasonable effort to return to work in suitable employment for the purposes of this Division if the worker—
(a)has refused to have an assessment made of the worker's employment prospects; or
(b)has refused or failed to take all reasonably necessary steps to obtain suitable employment; or
(c)has refused or failed to accept an offer of suitable employment from any person; or
(d)has refused or failed to participate in a rehabilitation program or a rehabilitation and return to work plan.
(8)In this Division—
(a)"first entitlement period" means an aggregate period not exceeding 13 weeks (whether consecutive or not) in respect of which a worker has an incapacity for work and is entitled to the payment of compensation under this Act on the account of that incapacity;
(b)"second entitlement period" means an aggregate period not exceeding 13 weeks (whether consecutive or not) commencing after the end of the first entitlement period, in respect of which a worker has an incapacity for work and is entitled to the payment of compensation under this Act on account of that incapacity;
(c)"third entitlement period" means an aggregate period not exceeding 104 weeks (whether consecutive or not), commencing after the end of the second entitlement period, in respect of which a worker has an incapacity for work and is entitled to the payment of compensation under this Act on the account of that incapacity;
(d)"retirement age" means—
(i)if there is a normal retirement age for workers in employment of the kind from which the worker's disability arose—that age of retirement; or
(ii)the age of 65 years,
whichever is the lesser;
(e)a reference to weekly earnings, or current weekly earnings, is a reference to weekly earnings exclusive of prescribed allowances.
Section 35A of the Act*
(1)Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the first entitlement period as follows:
(a)for any period when the worker has no current work capacity—the worker is entitled to weekly payments equal to the worker's notional weekly earnings;
(b)for any period when the worker has a current work capacity—the worker is entitled to weekly payments equal to the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.
(2)Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the second entitlement period as follows:
(a)for any period when the worker has no current work capacity—the worker is entitled to weekly payments equal to 90% of the worker's notional weekly earnings;
(b)for any period when the worker has a current work capacity—the worker is entitled to weekly payments equal to 90% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.
(3)Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the third entitlement period as follows:
(a)for any period when the worker has no current work capacity—the worker is entitled to weekly payments equal to 80% of the worker's notional weekly earnings;
(b)for any period when the worker has a current work capacity—the worker is entitled to weekly payments equal to 80% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.
(4)For the purposes of this section, but subject to subsection (5), the designated weekly earnings of a worker will be taken to be—
(a)the current weekly earnings of the worker in employment or self-employment; or
(b)the weekly earnings that the Corporation determines that the worker could earn from time to time (including, but not limited to, the amount of any current weekly earnings) in employment, whether in the worker's employment previous to the relevant disability or in suitable employment, that the Corporation determines the worker is capable of performing despite the disability,
whichever is the greater, but not to include a prescribed benefit under subsection (6).
(5)Subsection (4)(b) will not apply to a worker who has a current work capacity during any period or periods during which the worker is incapacitated for work and in which either of the following circumstances apply:
(a)the employer has failed to provide the worker with suitable employment and the worker is making every reasonable effort to return to work in suitable employment;
(b)the worker is participating in a rehabilitation and return to work plan which reasonably prevents the worker from returning to employment.
(6)The following are prescribed benefits for the purposes of subsection (4):
(a)any amount paid to the worker by the Corporation or a self-insured employer in respect of an employment program provided or arranged by the Corporation or self-insured employer for the purposes of this Act;
(b) any of the following received by the worker from an employer:
(i)any payment, allowance or benefit related to annual or other leave;
(ii)any payment, allowance or benefit paid or conferred by the employer on the worker's retirement;
(iii)any payment, allowance or benefit paid or conferred under a superannuation or pension scheme;
(iv)any payment, allowance or benefit paid or conferred on the retrenchment, or in relation to the redundancy, of the worker;
(c)any other payment, allowance or benefit of a prescribed kind.
Section 35B—Weekly payments after expiry of designated periods—no work capacity
(1)Subject to section 35C (and to the other provisions of this Act), a worker's entitlement to weekly payments under this Division ceases at the end of the third entitlement period under section35A (unless brought to an end before this time) unless the worker is assessed by the Corporation as—
(a)having no current work capacity; and
(b)likely to continue indefinitely to have no current work capacity.
(2)If a worker qualifies under an assessment under subsection (1), the worker is entitled to weekly payments while incapacitated for work in respect of a particular disability equal to 80% of the worker's notional weekly earnings as though the third entitlement period were continuing.