Exercise of the judgment required by s 30(1)(c) (or s 137(1)(c))

Exercise of the judgment required by s 30(1)(c) (or s 137(1)(c))

In deciding whether the client's degree of incapacity is unlikely to change, as required by s 30(1)(c) or s 137(1)(c), each case must be considered on its own merits.  Relevant considerations will include:

a.whether the degree of incapacity is likely to increase, thereby reducing the amount the client is able to earn and resulting in the employee's weekly compensation benefits increasing to more than the prescribed redemption ceiling;

b.whether the degree of incapacity is likely to decrease, thereby increasing the amount the client may be able to earn and resulting in a reduction or cessation of the weekly compensation benefit;

c.the length of time which the client has been receiving the same level of weekly payments - which could provide an indication as to whether the degree of incapacity is relatively stable.  A period of stability of less than 6 months would generally indicate that a redemption would not be appropriate;

d.any historical record of intermittent periods of incapacity which suggests that the level of incapacity may change;

e.an assessment of the goals (or proposed outcomes) of any rehabilitation plan the client may be undertaking and particularly whether any potential change in level of incapacity is likely once the rehabilitation program is completed;

f.if no rehabilitation plan is currently underway, a s 36 assessment should be considered to determine whether the client is capable of undertaking a rehabilitation program with the aim of reducing the level of incapacity and subsequent effect on the client's ability to earn;

g.contemporary medical evidence as to whether the level of incapacity is likely to change;

h.if the period of incapacity is within the first 45 weeks, no redemption should be calculated because the level of incapacity is likely to change (note para c. above); and

i.if the client is still serving, no redemption should be calculated since the level of incapacity can be considered to be likely to change.

Examples

1. An client on a graduated return to work would not satisfy this criterion as it is likely that the degree of incapacity will decrease as increasingly more time is spent back at work.

2. The medical evidence in a particular case may indicate that the compensable condition could deteriorate in the future, thus increasing the client's degree of incapacity and reducing their ability to earn.  In these circumstances, the criterion would not be satisfied.

3. A client who has been in receipt of the same amount of weekly incapacity payments for two years, as a result of a stable hearing impairment, would be likely to satisfy the criterion.