Employee capacity decisions – returning to work after being on workers compensation

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Once injured on the job it can be difficult to assess when an employee is ready to return. This is often due to differences of opinion regarding the worker’s ongoing level of disability, available work, and the employers’/insurance carriers’ willingness to continue to make workers compensation payments to an injured employee. Based on all this, the insurance carrier has the right to make a decision with regards to the employees capacity to return to work.

What Is Involved in a Work Capacity Decision?

A work capacity decision is one in which the insurance company uses various forms of information to assess if the worker is ready and able to return to work at some capability. The return to work does not necessarily have to be at their former position or at their former salary. Instead, the insurance company will look at various factors when making a return to work determination, such as;

  • What is the employee’s current work capacity? i.e. part-time, full time, lesser physical requirements etc.
  • What salary would be available to the returning worker?
  • What types of employment could the worker currently engage in? i.e. the same job with modifications, a new job using transferable skills, etc.
  • What would be the comparison between the pre-injury weekly wage and the proposed weekly wage?
  • Is the worker unable to engage in particular types of work based upon their injury?

Oftentimes the insurer will also use medical evidence garnered by a physician of their choice and the injured worker’s designated physician.

When Can a Decision Be Made?

A decision regarding a workers capacity cannot be made too soon into the process of treating and allowing the injury to heal. However, after approximately 78 weeks of receiving benefits, it is likely that the insurer will begin the process of assessing the injured worker to determine their capacity to work. This assessment must take place before the worker has been out of work and receiving benefits for 130 weeks.

How Much Notice Must an Injured Worker Receive Prior to A Work Capacity Decision Being Made?

Once a worker has received 12 continuous weeks of benefits, the insurance carrier must give the worker three (3) months’ notice that a reduction in benefits is forthcoming.

What Can You Do If Your Benefits Are Reduced by a Work Capacity Decision?

If you find that your insurance has given adequate notice that your benefits are going to be reduced or eliminated and you disagree, you do have options available to you. These options include;

  • You can contact the Workers’ Compensation Independent Review Office (WIRO). This office is available to assist injured workers’ and/or their representatives with finding proper legal advice as to how to proceed with requesting a review of the decision.
  • You can also make your own request for review to the insurer. To do this you would contact the insurer and ask for their Request for Review form. It is possible that the insurer will have a different name for their form, so it is best to describe to the person assisting you that you are requesting a review of a Work Capacity Decision. Once you have requested the review the insurer will have a different insurance adjuster review the decision and render you a new decision which could affirm the previous decision, alter the previous decision or possibly issue a new finding.
  • Your third option is to lodge a request for review with the Workers’ Compensation Commission. This Commission is an independent tribunal that, upon request, will review the position of the insurance company and the injured worker and render a finding.

While all of these options are available to you to pursue of your own volition, the process can get complicated. Therefore, it is best approached with the assistance and advice of a professional who is familiar with the area of workers’ compensation law and with requests for review of work capacity decisions.

If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

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