1. BEYOND A GIST Procedural Review of Work Capacity Decisions Wayne Cooper Director – Work Capacity Reviews WorkCover Independent Review Office

2. 9 September 20142WORK CAPACITY REVIEWS “To have the understanding of the gist of an idea is to have the understanding of nothing.” -Michel de Montaigne (28 February 1533 – 13 September 1592)

3. 9 September 2014WORK CAPACITY REVIEWSPage 3 What Montaigne was getting at is that if you are to explain or to comprehend an idea, the complexities and nuances are important. They are what distinguishes one idea from another.

4. 9 September 2014WORK CAPACITY REVIEWS4 It is the complexities and nuances that distinguish one work capacity decision from another. For this reason it is necessary to be precise and correct when informing workers that their rights have been affected by a decision.

5. 9 September 2014WORK CAPACITY REVIEWS5 Three things to be precise about. They appear in Guideline 5.3.2

6. 9 September 2014WORK CAPACITY REVIEWS6 5.3.2. Requirements of a work capacity decision notice The work capacity decision notice must: [Note it says “must” – these are mandatory provisions.]

7. 9 September 2014WORK CAPACITY REVIEWS7 First, reference the relevant legislation

8. 9 September 2014WORK CAPACITY REVIEWS8 This means the right Act or Regulation, the right section or clause and even the right sub-section or sub-clause.

9. 9 September 2014WORK CAPACITY REVIEWS9 Secondly, explain the relevant entitlement periods

10. 9 September 2014WORK CAPACITY REVIEWS10 Notice it says “explain” not “set out” or “refer to.” Give an explanation of what the periods are and how they affect the worker.

11. 9 September 2014WORK CAPACITY REVIEWS11 Thirdly, state the impact of the decision on the worker in terms of their entitlement to weekly payments, entitlement to medical and related treatment expenses and return to work obligations

12. 9 September 2014WORK CAPACITY REVIEWS12 You cannot explain the impact a decision has by saying what impact it does not have.

13. 9 September 2014WORK CAPACITY REVIEWS13 For instance, section 59A(2) is not explained by telling a worker that their rights to reasonable hospital medical and related treatment expenses will be unaffected for 12 months. You also have to tell them what happens to those rights after 12 months.

14. 9 September 2014WORK CAPACITY REVIEWS14 BANKRUPTCY ACT 1966 – SECT 41 Bankruptcy notices (2) The notice must be in accordance with the form prescribed by the regulations.

15. 9 September 2014WORK CAPACITY REVIEWS15 The reason a bankruptcy notice must be precisely correct is because of the devastating consequences for a debtor against whom a sequestration order is made. Similarly, if a worker is to lose their livelihood following the making of a work capacity decision, it is expected that the notice the worker gets of that decision is strictly in accordance with the legislation and Guidelines.

16. 9 September 2014WORK CAPACITY REVIEWS16 Procedural review is calculated to ensure strict compliance. It differs from Merit Review and even Judicial Review in that there appears to be no discretionary element.

17. 9 September 2014WORK CAPACITY REVIEWS17 44 Review of work capacity decisions (1)An injured worker may refer a work capacity decision of an insurer for review: (c) to the Independent Review Officer (as a review only of the insurer’s procedures in making the work capacity decision and not of any judgment or discretion exercised by the insurer in making the decision), but not until the dispute has been the subject of internal review by the insurer and merit review by the Authority.internal review

18. 9 September 2014WORK CAPACITY REVIEWS18 This means that procedural review involves checking that the 1987 Act, the 1998 Act, the Regulation 2010 and/or the Guidelines have been fully and accurately complied with.

19. 9 September 2014WORK CAPACITY REVIEWS19 There are some gaps

20. 9 September 2014WORK CAPACITY REVIEWS20 Most notably, what happens when the Insurer has film of a worker doing something they say they cannot do? There appears to be no hearing forum in which film can be tested. It seems to me that it becomes a matter for the judgement or discretion of the Insurer if they choose to rely on such evidence when making a decision. That would not be a decision I could challenge in the course of Procedural Review. In the course of Judicial Review it may be regarded as a procedural unfairness, but procedural review is not so much concerned with “fairness,” because the exercise of discretion is not reviewed.

21. 9 September 2014WORK CAPACITY REVIEWS21 Three common areas of confusion: 1.Industrial Relations vs W/Comp 2.Work capacity vs S. 74 3.WIRO is not a washing machine (cf: WCC).

22. 9 September 2014WORK CAPACITY REVIEWS22 1. Don’t intermingle industrial relations with workers compensation.

23. 9 September 2014WORK CAPACITY REVIEWS23 Despite the previous slide, you are all no doubt aware of this decision: Fletcher International Exports Pty Limited v Adams [2007] NSWWCCPD 21[2007] NSWWCCPD 21

24. 9 September 2014WORK CAPACITY REVIEWS24 2. Decide whether you are issuing a work capacity decision or whether you should be doing a s 54 notice or s 74 notice for a liability dispute Section 43(2)(a) may have relevance here.

25. 9 September 2014WORK CAPACITY REVIEWS25 WORKERS COMPENSATION ACT 1987 - SECT 43 (2) The following decisions are not work capacity decisions: (a) a decision to dispute liability for weekly payments of compensation,

26. 9 September 2014WORK CAPACITY REVIEWS26 SECTION 43 (3) The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer.

27. 9 September 2014WORK CAPACITY REVIEWS27 SECTION 44 (5) The Commission is not to make a decision in proceedings concerning a dispute about weekly payments of compensation payable to a worker while a work capacity decision by an insurer about those weekly payments is the subject of a review under this section.

28. 9 September 2014WORK CAPACITY REVIEWS28 CAVEAT: Exceptio lis alibi pendens

29. 9 September 2014WORK CAPACITY REVIEWS29 3. Try to avoid the washing-machine approach. Unlike the WCC, there is no reason to “front-end load” with work capacity decisions.

30. 9 September 2014WORK CAPACITY REVIEWS30 Dumping hundreds of pages on a worker is undesirable, although the Guidelines may require it:

31. 9 September 2014WORK CAPACITY REVIEWS31 5.3.2: outline the evidence considered in making the decision, noting the author, the date and any key information. All evidence considered should be referred to, regardless of whether or not it supports the decision.

32. 9 September 2014WORK CAPACITY REVIEWS32 5.3.2 advise that any documents or information that have not already been provided to the worker can be provided to the worker on request to the insurer

33. 33 Evidence as to work capacity 44B Evidence as to work capacity (1) A worker must provide to the insurer: (a) certificates of capacity in accordance with this section in respect of the period in respect of which the worker is entitled to weekly payments, and (b) a declaration in the form approved by the Authority as to whether or not the worker is engaged in any form of employment or in self-employment or voluntary work for which he or she receives or is entitled to receive payment in money or otherwise or has been so engaged at any time since last providing a certificate under this section. WORKERS COMPENSATION ACT 1987 - SECT 44B 9 September 2014WORK CAPACITY REVIEWS

34. 9 September 2014WORK CAPACITY REVIEWS34 44B(3) A certificate of capacity must: (a) be a certificate given by a medical practitioner in a form approved by the Authority, and (b) certify as to the worker’s incapacity for work and whether the worker has a current work capacity or has no current work capacity during the period, not exceeding 28 days, stated in the certificate, and (c) specify the expected duration of the worker’s incapacity. (4) A certificate of capacity may cover a period exceeding 28 days if: (a) the person giving the certificate states in the certificate the special reasons why the certificate covers the longer period, and (b) the insurer is satisfied that, for the special reasons stated, the certificate should be accepted.

35. 9 September 2014WORK CAPACITY REVIEWS35 It follows that: “a period not exceeding 28 days” is the closest thing to a definition of “current” appearing anywhere in the 1987 Act. [see section 44B(3) and (4)]

36. 9 September 2014WORK CAPACITY REVIEWS36 HOW TO READ THE 2012 AMENDMENTS You should read out of the text, not into it. What does this mean?

37. 9 September 2014WORK CAPACITY REVIEWS37 It is a mistake to re-write an unfamiliar text in familiar terms for convenience. The 1926 Act is not the 1987 Act and the 2012 Amendments to the 1987 Act do not bring with them the nuances and case-law of the earlier legislation.

38. 9 September 2014WORK CAPACITY REVIEWS38 In the following two slides, which quote from Professor Gregory Nagy, the Francis Jones Professor of Classical Literature at Harvard University, substitute the word “WorkCover” every time Prof Nagy refers to the ancient Greek authors.

39. 9 September 2014WORK CAPACITY REVIEWS39 “Here is what I mean: you are doing a close reading of a text when you read it slowly and you try to read out of the text, not into the text. When I say to read out of the text, I mean that we need to analyze a text within its own context, instead of looking at it through the lens of our own worldview. This way, you avoid reading your values into the ancient Greek texts, which have their own values.

40. 9 September 2014WORK CAPACITY REVIEWS40 “When we read into the text, we are assuming that the ancient Greeks had the same values that we have. When we read out of the text, by contrast, we are trying to learn their values, which are often quite different from ours. In any case, we must be objective in trying to figure out what their values were. We have to rely on their texts and on the language that shapes their texts, and so their language needs to be translated as accurately as possible into English.” Nagy, G. – The Ancient Greek Hero in 24 Hours (Harvard University Press) 2013.

41. 9 September 2014WORK CAPACITY REVIEWS41 There is no legislative predecessor in New South Wales for the term “current work capacity.” Former concepts of incapacity: The 1926 Act had total [section 9] partial [s 11(1)] and partial deemed total [s 11(2)]. These translated loosely into the 1987 Act as total (ss 36, 37) partial (s 40) and partial deemed total (s 38).

42. 9 September 2014WORK CAPACITY REVIEWS42 There is no such concept as “partial incapacity” post June 2012. Similarly the concept of “partial deemed total incapacity” is irrelevant for present purposes.

43. 9 September 2014WORK CAPACITY REVIEWS43 So you should not read those earlier [and now irrelevant] concepts into the current version of the Act. That is what is meant by “reading out of the text.” You should only look at what is in front of you, not recalling what used to be there and trying to manipulate the current wording to fit the older wording.

44. 9 September 2014WORK CAPACITY REVIEWS44 Reading the WorkCover Guidelines.

45. 9 September 2014WORK CAPACITY REVIEWS45 The certificate of capacity is the primary tool for communication between the treating doctors (GP and specialists) and “all the parties involved in the return to work process.” “The certificate of capacity is one of the many sources of information used to help inform a tailored approach to injury management and return to work planning for each worker. “The worker is responsible for providing a completed certificate of capacity to the employer and the insurer to be eligible for weekly payments.” GUIDELINE 3: WORKCOVER NSW CERTIFICATE OF CAPACITY

46. 9 September 2014WORK CAPACITY REVIEWS46 Note this somewhat enigmatic wording from the previous slide: “The certificate of capacity is one of the many sources of information used to help inform a tailored approach to injury management and return to work planning for each worker.” Nothing in that statement suggests that “many sources of information” may be used when making a work capacity decision under section 43.

47. 9 September 2014WORK CAPACITY REVIEWS47 The Guideline clearly anticipates that supplementary information will be used in the “injury management” process and “return to work” planning, but nothing here would allow the reader to think that such other “sources of information” could be used in the work capacity assessment or decision-making processes. To so think would be to commit the error of reading into the Guideline, rather than reading out of it.

48. 9 September 2014WORK CAPACITY REVIEWS48 “ … for mine own part, it was Greek to me …” Servillius Casca – The Tragedy of Julius Caesar William Shakespeare, 1599.