Work Capacity Reviews After 130 Weeks of Entitlements

Published: 2 June 2009

From 1 April 2009, a person who has had an incapacity for work due to a compensable disability and an entitlement to income maintenance for an aggregate period of 130 weeks no longer has an entitlement to income maintenance if they have “a current work capacity”. (This is the effect of the new Section 35B of the Workers Rehabilitation and Compensation Act 1986.)

Does that mean that every injured worker who is only partially incapacitated for work and has received income maintenance for 130 weeks or more will have their income maintenance stopped?  The answer to that is, No.

The first reason for this is that the worker’s income maintenance may only be stopped if the worker has “a current work capacity” and this has a special meaning under the Workers Rehabilitation and Compensation Act 1986 so that a partial incapacity for work does not always mean that there is also a current work capacity.

The Act defines “current work capacity” as “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”.

The concept involves being unfit for pre-injury employment but fit for other employment that is “suitable”.  Again, “suitable employment” has a special meaning and is defined as “employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:

1. the nature of the worker’s incapacity and previous employment;
2. the worker’s age, education, skills and work experience;
3. the worker’s place of residence;
4. medical information relating to the worker that is reasonably available, including any medical certificate or report;
5. if any rehabilitation programs are being provided to or for the worker;
6. the worker’s rehabilitation and return to work plan, if any”.

So for a person to have a current work capacity they must not only have a fitness for work but also have fitness for employment in work for which they are suited.  Even though the work they could do does not have to be available, it does have to be an actual job that exists.

In order for a compensating authority to show that an injured worker has a current work capacity, it will need to show that the worker not only has some capacity to work but that there is an actual job that is suitable for the worker to do (taking into account the factors in paragraphs (a) to (f) listed above).

If you are an injured worker who has no job and no identified capacity to work in any suitable employment, you will continue to have an entitlement to your income maintenance.

The second reason that not all injured workers with only a partial incapacity will have their income maintenance stopped after 130 weeks of entitlements, is that even if they have a current work capacity, they can apply to the compensating authority to have their income maintenance continue on the basis that they are incapable of undertaking additional employment which would increase their current weekly earnings.  In other words, if an injured worker has a current work capacity and is working to the full extent of their capacity, then their income maintenance (which is sometimes called “make up pay”) will continue.  (See Section 35C of the Workers Rehabilitation and Compensation Act 1986.)

Therefore, if you are an injured worker and there is employment in work that you can do, it is essential that you work to the full extent to which you are able (as certified by a medical practitioner) so that your make up pay is not affected.

Under Section 58B of the Act, your employer is obliged to provide you with suitable duties that are as near as possible or equivalent to your pre-injury employment.  If you have more capacity to work than what your employer is providing, you must insist on being provided the additional work up to your maximum capacity.  If the employer still fails to provide you with the extra work, you can complain to the WorkCoverSA Return to Work Inspectorate (Phone 13 18 55) or to this Office.