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Workers compensation Certificates of Capacity in Victoria – Employee Benefits & Compensation


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.

WHO CAN PREPARE A CERTIFICATE 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.

HOW DO YOU GET A CERTIFICATE OF CAPACITY?

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.

WHAT MUST THE CERTIFICATE OF CAPACITY INCLUDE?

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.

WHEN IS A CERTIFICATE OF CAPACITY CONSIDERED INVALID?

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.

HOW OFTEN DO I NEED TO GET A WORKCOVER CERTIFICATE OF
CAPACITY?

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.

I PROVIDED A CERTIFICATE OF CAPACITY BUT WEEKLY PAYMENTS HAVE
NOT BEEN MADE

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.

CAN A CERTIFICATE OF CAPACITY BE BACKDATED?

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.

WHAT IF I CAN’T OBTAIN A CERTIFICATE OF CAPACITY?

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.

WHEN CAN WEEKLY PAYMENTS BE MADE WITHOUT A CERTIFICATE OF
CAPACITY?

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.



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