Work Capacity Decisions: More Pushback from St George Bank Decision

On 2 March 2016 the Registrar of the Workers Compensation Commission, Rod Parsons, told the 4th Annual Personal Injury Conference his views on fall-out from the Presidential decision of Sabanayagem v St George Bank Limited [2016] NSW WCCPD 3 (21 January 2016).

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Whilst emphasising that the issues will not be clarified until further decisions either at a Presidential level or by the Court of Appeal, Mr Parsons told the conference that by virtue of section 43(2) a decision to dispute liability for weekly payments or a decision in relation to a medical dispute is not a Work Capacity Decision.

In particular, decisions to the effect that a worker is fit for pre-injury employment cannot by definition be construed as Work Capacity Decisions, because the section 32A definitions of both “current work capacity” and “no current work capacity” both envisage situations where a worker is not able to return to pre-injury employment.

Further, Mr Parsons stated:-

I know there has been a circular going around to insurers that if it’s something to do with weekly compensation it must be a Work Capacity Decision… I can’t read section 43(2) any other way than it’s not a Work Capacity Decision if you believe a worker is fit for pre-injury employment”.

Mr Parsons reminded delegates that whether a decision is a liability decision versus a Work Capacity Decision is fact-sensitive and that the whole of the evidence therefore needs to be considered. Just because a document is headed “Work Capacity Decision” or “74 Notice” is not determinative. It is necessary to look at the substance of the decision, all documents attached to the decision, compliance issues, Guidelines and the legislation.

Mr Parsons also reminded delegates that documents which are in substance liability disputes should not be “dressed up” as Work Capacity Decisions.

In summary, Mr Parsons expressed his view that Work Capacity Decisions are about “quantum of weekly payments” in situations where there is no dispute that a worker is unfit for pre-injury duties by reason of a particular injury, but if a dispute is about “entitlement to compensation” then that is a matter that should be the subject of a Dispute Notice thus engaging the jurisdiction of the Commission.