Workers Compensation certificates of capacity

A Certificate of Capacity is a specific document that is required when you are making a WorkCover claim for weekly payments in Victoria. Worker’s compensation weekly payments can be claimed if you are unable to perform your pre-injury employment or any other suitable employment. If you are only claiming medical and like expenses, you do not require a WorkCover Certificate of Capacity.

Section 167 of the Workplace Injury Rehabilitation Act 2013 governs the requirements for Certificates of Capacity.

The first Certificate of Capacity must be completed by a medical practitioner. This can be done by your general practitioner, surgeon or psychiatrist.

In addition to a medical practitioner, subsequent certificates can then be completed by a physiotherapist, chiropractor or osteopath (“treating health practitioner”).

Notably, a Certificate of Capacity is not the same as a “sick certificate”. It is a specific form, sometimes referred to as a workers compensation certificate, which must be completed by a medical practitioner or treating health practitioner.

The Certificate of Capacity must be completed by the medical practitioner or treating health practitioner. You cannot complete the Certificate of Capacity on their behalf.

Ordinarily, the medical practitioner or treating health practitioner will have access to a blank Certificate of Capacity which they will complete.

If, however, your medical or treating health practitioner does not have access to the form it can be easily downloaded from the WorkSafe website.

The certificate must clearly state:

• your diagnosis as a result of your workplace injury;
• any restrictions or functional limitations you have;
• your work capacity for pre-injury employment, suitable or modified duties, or any employment (and state the specified period); and
• treatment proposals.

Your medical or treating health practitioner must also sign and date the Certificate of Capacity.

You are also required to sign the certificate and declare what (if any) work you have engaged in by ticking the appropriate box. It is important that you declare any paid or unpaid work that you have engaged in.

The WorkCover insurer will only accept a “valid” Certificate of Capacity. A certificate will be considered invalid if it contains a material defect. This can include:

• No diagnosis;
• Diagnosis not sufficiently or specifically stated eg. medical condition;
• Failure to sign the certificate;
• Failure to tick the declaration about work;
• Medical practitioner or treating health practitioner failure to provide their details;
• Inability to properly identify the worker.

The defects in an invalid Certificate of Capacity can be fixed by rectifying the defects.

An ordinary medical certificate will not be accepted by the insurer for the purposes of weekly payments.

The first Certificate of Capacity cannot exceed a maximum of 14 days off work. This period can be extended if special reasons are provided and are clearly stated on the certificate. This can include severe injury/illness or exceptional circumstances.

Subsequent certificates cannot exceed a maximum of 28 days. This period can be extended if there are special reasons. To request an extension of a certificate beyond 28 days, the medical practitioner or treating health practitioner must state in the certificate, the reasons why the certificate covers a longer period.

The WorkCover insurer will then decide if they accept the special reasons to warrant an extended Certificate of Capacity and make weekly payments.

As the commencement of weekly payments relies on a valid Certificate of Capacity, if an extended certificate is required, it is important (if possible) to provide it to the Workcover insurer early. This is so the insurer can determine and advise you of whether they will accept or reject the certificate early and potentially avoid any issues with non-payment of weekly payments for the extended period.

There can be many reasons why the WorkCover insurer refuses to pay weekly payments even when a Certificate of Capacity is provided.

These are some of the most common reasons:

• The Certificate of Capacity is invalid (see above for valid certificates);
• The Certificate of Capacity refers to an injury or illness that has not been accepted or claimed on the worker’s claim form (in order for weekly payments to be made, there must be an accepted WorkCover claim);
• There is no entitlement to weekly ;
• The Certificate of Capacity is older than 90 days from the date it was issued (the law does not allow certificates that were issued on a date older than 90 days);
• The Certificate of Capacity has been completed by a person not authorised to complete the certificate;
• The Certificate of Capacity is illegible;
• The Certificate of Capacity does not specify the period of incapacity.

If the WorkCover insurer does not provide valid reasons for rejecting a Certificate of Capacity and subsequently, not paying weekly payments, this can be referred to the Accident Compensation Conciliation Service (ACCS) to dispute their decision.

Ordinarily, a Certificate of Capacity is issued on the day that you see your medical practitioner or treating health practitioner and the first date of incapacity will be on that date.

Sometimes, for various reasons, a worker cannot obtain a certificate in time (ie. the next certificate is due on a public holiday or they cannot get an appointment with their practitioner in time). A backdated Certificate of Capacity is where the start date of the period of incapacity is before the date that the certificate was issued on.

An example of a backdated certificate would be where the certificate is issued on say, 30 March 2022 to cover the period from 1 March 2022 to 28 March 2022. The date of which the certificate is issued is after the period of incapacity.

There is no prohibition on a medical practitioner or treating health practitioner from backdating a certificate if, on the date of the medical examination, they are satisfied that the worker had the incapacity to return to their pre-injury duties or suitable employment.

The WorkCover insurer has the discretion to accept or reject the backdated certificate, depending on the particular circumstances.

It is important to note that the law does not allow backdating of a certificate to more than 90 days.

There may be times where a worker cannot obtain a Certificate of Capacity despite their best efforts. If this is the case, the worker can lodge a request for conciliation to the ACCS. If there is no resolution at conciliation, then the worker may apply to the County or Magistrates Court (Victoria) to determine if the worker is entitled to compensation in the form of weekly payments.

It is important to note that if the Court determines that the worker is entitled to weekly payments on an ongoing basis, then the worker will have to supply ongoing certificates to access this entitlement.

There are very few instances where weekly payments can be made without providing Certificates of Capacity.

If a worker’s compensation claim has been initially rejected or weekly payments have been terminated and the decision is subsequently reversed, Certificates of Capacity are not required from the date the original adverse decision took effect to the date it is reversed.

Examples of when this can occur:

• The WorkCover insurer agrees to make worker’s compensation weekly payments after initially rejecting a WorkCover claim or terminating weekly payments;
• The WorkCover insurer withdraws the rejection/termination decision after an internal review;
• The Workcover insurer withdraws the rejection/termination decision following a Workers Compensation Independent Review;
• The WorkCover insurer agrees to withdraw the rejection/termination decision at conciliation;
• A Conciliation Officer issues a direction to the WorkCover insurer to set aside the rejection/termination decision;
• A Court sets aside the rejection/termination decision; or
• A settlement is reached following the issuing of Court proceedings.

At Polaris Lawyers, we have highly skilled and experienced worker’s compensation lawyers able to assist you with any concerns you have about your WorkCover claim.

If you require any advice about a WorkCover Certificate of Capacity or experience any issues with the WorkCover insurer accepting your Certificate of Capacity, please contact us.