Mr Klein, a 53 year old truck driver, injured his knee and was on weekly payments of compensation. These payments were terminated by the Claims Agent, Allianz, on the grounds that he had received 130 weeks of weekly payments and that he had a work capacity, among other reasons. Vocational assessments obtained by Allainz identified generally a number of jobs that might be suitable for Mr Klein including process worker/product assembler and kitchen hand.
Magistrate Garnett said that the Medical Panel would not have been assisted by the vocational assessments obtained in this case as they did not provide enough information about the possible occupations to enable the Panel to provide a realistic assessment about whether Mr Klein could perform those jobs. "For example, the suggested suitable employment as Process Worker/Product Assembler would need to address; the weights of the components that that he would have to lift, whether the task of locating, positioning and securing of components on workbenches are to be performed in a standing and/or sitting position, whether the tasks require repetitive lifting and bending and the hours of work."
"it is not appropriate for an Agent/Self Insurer to provide a general description of the suggested suitable employments or to embark on an exercise in
what amounts to 'cherry picking' aspects of particular jobs for the purpose of creating fictional employment options. There must be a 'degree
of realism' in the suggested suitable employments. Furthermore, when considering whether a worker has a capacity for 'suitable employment', the suggested
'suitable employment' needs to be analysed by specific reference to the particular requirements of the job, the medical restrictions and personal characteristics
of the worker in addition to the factors set out in the definition." (Magistrate Garnett para 9 of the decision)
Magistrate Garnett said that the most appropriate forum for consideration and resolution of these factual issues was a Court not a Medical Panel and that once it decided on those factual issues the Court would be in a better position to determine whether the positions identified constituted "suitable employment" for Mr Klein.
Klein v VWA  VMC (23 August 2016)
If your weekly payments have been terminated on the basis that you have a capacity for suitable employment, contact Penny to find out what rights and entitlements
you may have. It is possible, in the first instance, to have the decision reviewed by the Accident Compensation Conciliation Service. A Request
for Conciliation must be lodged within 60 days, so it is important that you get advice about your rights as soon as possible. Penny can help you make
a Request for Conciliation and can advise you about Medical Panels and going to Court.