Inability To Engage In Work At The Previous Level

This type of incapacity occurs when an employee is:

• on a graduated return to work;

• unable to work pre-injury hours;

• unable to work shifts or overtime; or

• redeployed to a lower paying position.

Incapacity will involve the full period of reduced ability to work and not just the hours the employee is absent.

If this period falls within the first 45 weeks of incapacity (see part 3 of this volume) the whole period will be debited from the full NWE entitlement.

For example:

The reason for an employee being medically certified unable to work more than a limited number of hours per day (or days per week) is because he or she is partially unfit all the time.  This results in reduced stamina and a consequent inability to last at work for the standard day (or week).

Section (b) of the incapacity definition covers this type of incapacity.  It cannot reasonably be construed to say that an employee is somehow drifting in and out of total incapacity from hour to hour.

The duration of an employee's incapacity in these cases must therefore be the period over which he or she is unable to “engage in work at the same level at which he or she was engaged by the Commonwealth ... immediately before the injury happened”.

This applies not only to those on a graduated return to work, but to any case where the employee has some capacity to earn, but is not able to earn full pre-injury earnings.