Proving You Have No Capacity to Work for Extended Benefits

If you are an injured worker in Victoria you will only continue receiving weekly payments of compensation after 130 weeks if you have no capacity to work in any suitable employment and this is likely to continue for the foreseeable.

The Court of Appeal, Victoria’s highest Court, handed down a decision on what having no work capacity for suitable employment means. The decision was Richter v Driscoll and concerned the Court’s review of a medical panel opinion finding that the plaintiff had a work capacity and that her payments should cease. The plainitff disagreed with this decision and asked the Court of Appeal to find that she was not fit for any work becuase on her injury when viewed in the context of her life and circumstances.

By way of background, Ms Richter, the Plaintiff, who is now nearly 59 years of age. She lives in Wodonga. She was educated only to Year 7. The Panel, whose opinion lies at the heart of the present application, accepted that she has ‘difficulties with literacy and numeracy’. She has no computer skills. Before 1994, at which time she would have been aged about 37, she had engaged in very little employment. She had done some babysitting, and had otherwise been a stay at home mother. She thus had virtually no acquired employment skills or experience. In 1994, she began a diploma in horticulture at the Wodonga TAFE. She worked as a nursery assistant between February and June of that year in the employ of the first and second respondents. But in the course of her employment, she suffered a serious low back injury. She ceased work in mid-1994, and has not been in employment since that time. Indeed, as will be seen, it was not in contest that, between mid-1994 and December 2013, a period exceeding 19 years, she was compensated for incapacity resulting from her injury. I must note that such a period of admittedly compensable incapacity is very unusual, and the Court required careful consideration when it was asserted that she no longer had ‘no current work capacity’.

Initially the Medical Panel had found that Mrs Richter had a work capacity after considering he command of English, ability to drive locally, previous though very limited work history and an improvement in her back condition in the four years since she had last been reviewed.

On appeal the Court found that the Medical Panel had misdirected itself to what the meaning of no current work capacity was. They went on to explain that the task in deciding this question is not ask: Is she likely to be employed and remain employed that is to guarantee that there will be space for her in the labour market. That is to say, it is not enough for a worker to show that getting a job is hard or that ongoing employment is unstable. The real question is to go beyond examining a specific element of a job and look at the entirety of what it means to employed in a role in the context of a person’s own circumstances.

Very importantly in the judgement the Court noted that it had been almost 20 years since the Plaintiff had worked in any capacity and noted that her work history in any event consisted primarily of baby-sitting here and there and some casual work at a florist.

They went on to say that the Medical Panel had not thought about the inherent requirements of light process work simply glossing over what may be needed to opine that light tasks were appropriate without elaborating further.

In deciding that the Plaintiff did have no capacity for suitable employment the Court seemed to indicate that analyses of work task that are superficial and that do not incorporate the entirety not only of job tasks, but what it means to travel to work, be reliable, be able to learn on the job, work in an employment situation will be deficient.

The Court suggests that consideration of each worker’s past, skills, location, incapacity and the inherent nature of the jobs that are alleged to be capable ought to be the start of the discussion about capacity.

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