Open scrollable table of contents

Print entire document

Merit review WC018/18

Our Reference: 018/18

Findings

  1. The worker had ‘no current work capacity’ from March 2017 to February 2018.

Recommendation

  1. The insurer must apply the above finding to recalculate the worker’s entitlement to weekly payments of compensation from March 2017 to February 2018.

Background

  1. The worker had received weekly payments of compensation for incapacity for work as a result of a back injury. The worker was employed as a delivery truck driver at the time. There are differing accounts about the mechanism of injury but nothing turns on this for the purposes of this review. The insurer has accepted liability for an injury to the worker’s back.
  2. In November 2016, the insurer decided to reduce the amount of the worker’s weekly payments of compensation to $0.00 on the basis that, among other things, the worker had ‘current work capacity’.
  3. The worker referred that decision for internal review in January 2018. In February 2018, the insurer decided that the worker had ‘no current work capacity’ and was entitled to weekly payments of compensation from February 2018. The insurer did not address the period from the date the work capacity decision came into effect to the date of its internal review decision, that period is March 2017 to February 2018.
  4. The worker made an application for merit review by the Authority in March 2018. The application complied with the requirements of section 44BB of the 1987 Act. To the extent that the insurer failed to conduct an internal review of its decision for the period March 2017 to February 2018, the application for merit review may be made under section 44BB(3)(b) of the 1987 Act.

Legislation

  1. The legislative framework for work capacity decisions and reviews is contained in the:
    • Workers Compensation Act 1987 (the 1987 Act)
    • Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)
    • Workers Compensation Regulation 2016 (the Regulation)
  2. Section 43 of the 1987 Act describes a ‘work capacity decision’. An injured worker may refer a work capacity decision for merit review by the Authority under section 44BB of the 1987 Act. The Authority is to notify the insurer and the worker of the findings of the review and may make recommendations to the insurer based on those findings under section 44BB(3)(e). Recommendations are binding on the insurer and must be given effect to by the insurer under section 44BB(3)(g).

Documents considered

  1. The documents considered for this review are the application for merit review and the insurer’s reply form, the documents listed in and attached to those forms, and any further information provided to the Authority and exchanged between the worker and the insurer.

Submissions

  1. The worker’s legal representative submits.
    • The insurer decided to reinstate the claimant’s weekly payments but did not make any back payment to the claimant. The claimant’s last payment from the insurer was for the period February 2017 to March 2017.
    • The claimant seeks that the insurer back pay them from the date of last payment, to date and continuing.
    • The worker has extremely poor English speaking, writing and listening skills. Reports from the nominated treating doctor and treating neurosurgeon are referred to in support. A number of other further submissions are made about the worker’s poor English language skills.
    • The worker has been receiving Centrelink benefits which are much less than what they were earning before their injury. The worker has been struggling financially for the past year under immense financial pressure.
    • The worker seeks a review of the work capacity decision and back pay from March 2017 to date and continuing.
  2. The insurer submits in reply:
  3. The incorrect claim number has been quoted in the application form and in the submissions.
  4. Claim number XXXXXXX16 is the only open claim for the worker – this is the claim that the work capacity decision and internal review has been made upon.
  5. It confirms  that the internal review determination, dated February 2018, outlined that the worker has no capacity for suitable employment at that time with a reinstatement of weekly payments under section 37 of the 1987 Act from the date of that decision.

Reasons

Nature and scope of merit review

  1. Following the insurer’s internal review, there is now no dispute between the worker and the insurer that they are entitled to weekly payments of compensation on the basis that they have ‘no current work capacity’ from February 2018.
  2. It is the amount of compensation payable for the period March 2017 to February 2018 that is still in dispute. This is therefore a merit review of the insurer’s decision to reduce the amount of the worker’s weekly payments of compensation to $0.00 on the basis that, among other things, the worker had ‘current work capacity’ for the period March 2017 to February 2018.
  3. A merit review requires me to consider the matter afresh and make the most correct and preferable finding about the amount of the worker’s weekly payments of compensation based on the information now before me.

Current work capacity

  1. The amount of the worker’s weekly payments of compensation for the period March 2017 to February 2018 depends on if the worker has ‘current work capacity’ or ‘no current work capacity’. These terms are defined by section 32A of the 1987 Act:

    current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment

    no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment

  2. In July 2016, the treating neurosurgeon, reviewed the worker. The treating neurosurgeon wrote to the nominated treating doctor, ‘I agree the lumbar spine is entirely normal, but all investigations as you say point to facet joint changes’. The treating neurosurgeon explained to the worker that ‘there is no reason here for them to not mobilise, and do some physical activity’. The treating neurosurgeon noted that ‘the worker feels the main limiting factor now is the left ankle regarding pre-injury duties’ and recommended that the nominated treating doctor ‘ensure [the worker] is seeing someone for this to confirm a diagnosis’.
  3. In July 2016, in a separate report, the treating neurosurgeon stated that ‘MRI scan is essentially normal’ and that the ‘mechanism of the worker’s injury suggests lumbar facet joint syndrome, ligamental and or musculoskeletal pain’. The treating neurosurgeon recommended a diagnostic procedure.
  4. In September 2016, the treating neurosurgeon reviewed the worker. The treating neurosurgeon gave a brief update and stated ‘I am concerned about some language problems in terms of interpretation of the results but I explained to the worker clearly that these are a local anaesthetic injections…and what we are after is a response where they have at least 50% reduction in their pain in the first 12 hrs’.
  5. In November 2016, the nominating treating doctor issued a certificate of capacity. The nominated treating doctor diagnosed the worker with an injury of thoracic–lumbar spine ‘mechanical/soft tissue pain’. The nominating treating doctor certified that the worker had capacity to work for ‘full’ hours a day, five days a week. The nominating treating doctor certified that the worker had the following physical limitations:
    • Lifting/carrying capacity: 12kg
    • Pushing/pulling ability: 12kg
    • Bending/twisting/squatting ability: ‘restrict’
    • Change posture regularly for comfort.
  6. In November 2016, the nominating treating doctor responded to a written request from the insurer about the suitability of certain employment for the worker. The nominating treating doctor supported employment as a cleaning supervisor and pathology courier. However, the nominating treating doctor did not support bus driver employment because it ‘may worsen back problem’.
  7. In November 2016, the insurer provided updated information to the nominating treating doctor about these employment options. The nominating treating doctor again indicated that employment as a cleaning supervisor and pathology courier was suitable but bus driver was not.
  8. In May 2017, the treating neurosurgeon referred the worker for a nerve conduction study due to complaints of lower limb paraesthesia. The treating neurosurgeon noted that ‘MRI did not show anything surgical’. In May 2017, the treating neurosurgeon reported:
  9. The worker returned for review in May 2017 following their second diagnostic paravertebral block. Again, it was difficult to interpreter [sic] the results, the worker says they felt light headed after the procedure, they may have had some reduction in pain but pain scores still remain 4/10. The worker is feeling severe paraesthesia in their legs, they feel weak at times, find it very hard bending and felt their legs are giving way. Objectively I could not find any neurology, nerve conduction studies may be useful, in terms of explaining their symptoms. The worker has high levels of pain catastrophising and poor
    self -efficacy and is cure focused which will hinder rehabilitation. At this stage, the worker remains unfit to return to work as a truck driver and I do not believe radiofrequency neurotomy of their facet joints will help.

  10. In June 2017, the treating neurosurgeon reported:

    I reviewed the worker in June 2017. The worker’s nerve conduction studies, EMG, are all normal. The diagnostic blocks have not been conclusive. The worker hasn’t [had] any particular surgical pathology to account for severe paraesthesia in their legs, and feeling weak at times. I feel they have high levels of pain catastrophising, poor self-efficacy, remains cure focused and has significant amount of yellow flags and is affected by anxiety and fear avoidance behaviours. I am not able to offer the worker any further treatment. I believe the worker can return to some work and needs an occupational service to review their work capacity.

  11. In June 2017, the nominated treating doctor, issued a certificate of capacity. The nominated treating doctor diagnosed the worker with a ‘lumbar spine disc bulging’ injury. The nominated treating doctor certified that the worker had no current work capacity for any employment. The estimated time to return to any type of employment ‘depends on recovery, and alternative duties’. The factor delaying recovery was ‘back pain’. The nominated treating doctor recommended referral to a workplace rehabilitation provider.
  12. In June 2017, the nominated treating doctor certified that the worker had capacity for some type of employment for six hours a day, three days a week and capacity for the following:
  13. Lifting/carrying capacity up to 5kg
  14. Sitting tolerance 45 minutes, take rest when needed
  15. Standing tolerance 45 minutes
  16. Pushing/pulling ability up to 5kg
  17. No bending
  18. Can drive, but has to take frequent rests.
  19. In July 2017, the treating neurosurgeon responded to specific questions put in writing by the insurer. The treating neurosurgeon considered that the worker had capacity to work as follows:
    • 24 hours a week
    • Lifting and carrying up to 5kg
    • Sitting tolerance of 40 minutes
    • Standing tolerance of 40 minutes
    • Pushing and pulling up to 7kg
    • Bending, twisting and squatting up to 5 repetitions per hour
    • Driving ability of 1 hour.
  20. In August 2017, the nominated treating doctor certified that the worker had capacity for some type of employment, but did not specify the hours of work. The nominated treating doctor certified that the worker had capacity for:
    • Lifting and carrying up to 5kg
    • Sitting tolerance of 45 minutes, take rest when needed
    • Standing tolerance of 45 minutes
    • Pushing and pulling up to 5kg
    • No bending
    • Can drive, but has to take frequent breaks.
  21. In October 2017, the nominated treating doctor issued a certificate of capacity. The nominated treating doctor diagnosed the worker with ‘lower back injury – lumbar spine disc bulge – Depression/adjustment disorder’. The nominated treating doctor certified that the worker had capacity to work 3 hours a day, 3 days a week. The factor delaying recovery was ‘nature of injury’. the nominated treating doctor certified that the worker had capacity as follows:
    • Lifting/carrying capacity 5kg
    • Sitting tolerance ‘as tolerated’
    • Standing tolerance ‘as tolerated’
    • Pushing/pulling ability ‘restricted’
    • Bending/twisting/squatting ability ‘restricted – as tolerated’
    • Driving ability up to 30 minutes then rest/stretch.
  22. In November 2017, the nominated treating doctor certified that the worker had capacity to work 15 hours a week with the same limits on their lifting, carrying, sitting, standing, pushing, pulling, bending, twisting, squatting and driving ability as before.
  23. In January 2018, the nominated treating doctor prepared a report in response to specific questions put in writing by the worker’s legal representative. The nominated treating doctor considered that the worker’s ‘current capacity’ was for 15 hours per week of ‘light duties’ subject to the following limits: lifting/carrying ‘05kg’, sitting as tolerated, standing as tolerated, pushing/pulling restricted, bending/twisting/squatting restricted/as tolerated, driving up to 30 minutes then rest/stretch. The nominating treating doctor stated that they did not agree with the worker’s previous nominated treating doctor’s opinion about the worker’s capacity to return to work as a cleaning supervisor, pathology courier or bus driver. The nominated treating doctor considered that the physical demands of these jobs were unsuitable for the worker. The nominated treating doctor also stated that the worker had ‘very poor’ spoken English, had no cleaning experience to be selected as a cleaning supervisor, and lacks a bus driving licence.
  24. In February 2018, the nominated treating doctor provided a response to specific questions put by the insurer about suitable employment options for the worker. The nominated treating doctor did not consider that cleaning supervisor, pathology courier or bus driver were suitable for the worker.
  25. In February 2018, the nominated treating doctor issued a certificate of capacity in the same terms as before.
  26. I consider that the treating neurosurgeon’s opinion about the worker’s work capacity holds the most weight. The treating neurosurgeon is not only a qualified doctor but a specialist neurosurgeon. The treating neurosurgeon’s numerous reports are detailed and support that they have closely monitored the worker’s condition over a lengthy period. The treating neurosurgeon is very well placed to assess the worker’s work capacity.
  27. I acknowledge the nominated treating doctor’s opinion in the certificate of capacity dated November 2016, but I am not persuaded such an opinion was supported by the treating neurosurgeon at the time. In the report dated July 2016, the treating neurosurgeon stated that ‘there is no reason here for [the worker] to not mobilise, and do some physical activity’ (emphasis added). In my view, those comments do not fit well with the nominated treating doctor’s opinion that the worker had capacity for full-time work with relatively minor restrictions. I consider that the comments are more likely to fit with the treating neurosurgeon’s assessment of the worker’s work capacity in July 2017 when the treating neurosurgeon was specifically asked to provide such an opinion.
  28. The nominated treating doctor gave opinions about the worker’s work capacity in June 2017 and August 2017. The treating doctor’s opinion was reasonably close to the treating neurosurgeon’s opinion. However, there is some difference of opinion and I prefer treating neurosurgeon’s opinion as a specialist neurosurgeon who has been closely involved in treating the worker’s work injury over a lengthier period.
  29. I acknowledge the nominated treating doctor’s opinion which post-dates treating neurosurgeon’s assessment and is a more restricted view of the worker’s work capacity. There is no persuasive information before me to support that the worker’s condition had materially deteriorated since treating neurosurgeon’s assessment of the worker’s work capacity in July 2017. Indeed, nominated treating doctor’s certificates of capacity from October 2017 to now have remained largely the same. In fact, the worker’s certified capacity for work has been increased by the nominated treating doctor from nine hours to 15 hours per week which, if anything, indicates the worker’s capacity has improved in the nominated treating doctor’s opinion. In my view, it is more probable that the different assessments of the worker’s work capacity between the treating neurosurgeon and the nominated treating doctor reflects a difference of clinical opinion rather than because the worker’s condition has materially deteriorated in the relatively short period between July and October 2016. I prefer the treating neurosurgeon’s assessment of the worker’s work capacity in view of the treating neurosurgeon’s qualifications, experience and detailed reporting.
  30. I acknowledge that there are numerous reports and treatment plans before me from physiotherapists and other allied health professionals. I put more weight on the opinion about the worker’s work capacity from the treating neurosurgeon for the reasons above.
  31. I find that for the period March 2017 to February 2018, the worker had a present inability arising from an injury such that they were able to return to work for 24 hours a week within the following limits:
    • Lifting and carrying up to 5kg
    • Sitting tolerance of 40 minutes
    • Standing tolerance of 40 minutes
    • Pushing and pulling up to 7kg
    • Bending, twisting and squatting up to 5 repetitions per hour
    • Driving ability of 1 hour.
  32. The treating neurosurgeon stated that ‘the worker remains unfit to return to work as a truck driver’ in May 2017. The treating neurosurgeon has not expressed a change of opinion on that issue. In fact, the treating neurosurgeon assessed in July 2017 that the worker has a 1-hour driving ability which, in my view, fortifies the opinion in May 2017.
  33. I find that the worker had a present inability arising from an injury such that they were not able to return to their pre-injury employment.
  34. The issue is then if the worker could return to work in ‘suitable employment’ as defined under section 32A of the 1987 Act:
  35. Suitable employment, in relation to a worker, meansemployment in work for which the worker is currently suited:

    1. having regard to:
      1. the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
      2. the worker’s age, education, skills and work experience, and
      3. any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
      4. any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
      5. such other matters as the Workers Compensation Guidelines may specify, an
    2. regardless of:
      1. whether the work or the employment is available, and
      2. whether the work or the employment is of a type or nature that is generally available in the employment market, and
      3. the nature of the worker’s pre-injury employment, and
      4. the worker’s place of residence.
  36. In November 2016, an injury management consultant prepared a vocational assessment report as part of the return to work planning process. The injury management consultant suggested that employment as a cleaning supervisor, pathology courier and bus driver were options that ‘the worker can be considered immediately employable in these positions without the need for any retraining or a work trial’.
  37. The nature of the worker’s incapacity and the details provided in the medical information have led me to find that the worker’s is able to engage in employment in work for 24 hours a week within the following limits:
    • Lifting and carrying up to 5kg
    • Sitting tolerance of 40 minutes
    • Standing tolerance of 40 minutes
    • Pushing and pulling up to 7kg
    • Bending, twisting and squatting up to 5 repetitions per hour
    • Driving ability of 1 hour.
  38. The worker completed school in a non-English speaking country and does not hold any tertiary qualifications. The worker has a HR Driver’s Licence. The worker reported ‘very basic’ computer skills to the injury management consultant, which was not challenged or tested by the injury management consultant. The injury management consultant considered that the worker had below average listening and reading skills and average speaking and writing skills. The injury management consultant stated that the worker ‘frequently provided information that was not of relevance to the question asked, which may suggest their listening abilities are below average’ but that the worker ‘was able to communicate and articulate themselves clearly, demonstrating average speaking abilities’. The worker’s only recorded work experience overseas was in the army. Since coming to Australia, the worker was worked as a cleaner for 4­-5 years, fruit shop owner/operator for 8 months, a truck driver for 1.5 years and then ‘less than 1 year’ as a delivery truck driver in the role in which the worker was injured.
  39. At this point, it is convenient to note the worker’s submission that they had ‘extremely poor English speaking, writing and listening skills’. The worker refers to the nominated treating doctor’s report dated January 2018 and the treating neurosurgeon’s report dated September 2016 in support of that submission.
  40. In the report dated January 2018, the nominated treating doctor stated that ‘the worker does not speak English very well, it is very poor’.
  41. In September 2016, the treating neurosurgeon stated ‘I am concerned about some language problems in terms of interpretation of the results but I explained to the worker clearly that these are local anaesthetic injections and will wear off after a day or so and what we are after is a response where they have at least 50% reduction in pain in the first 12 hrs’ (emphasis added). Importantly, the treating neurosurgeon stated concerns about the worker’s ‘language problems’ were limited to the specific issue of interpreting the results of lumbar facet block treatment, not general communication. It is apparent from the treating neurosurgeon’s other reports that the worker could effectively communicate about general matters. For example, in the report dated July 2016 the treating neurosurgeon stated that the worker ‘explained the constant changing of gears from second to third has caused irritation of their left ankle pain…[the worker] actually indicates that the left ankle is a separate injury which was aggravated by the current injury…the worker feels the main limiting factor now is the left ankle regarding pre-injury duties…’.
  42. There are similar reports from other treating practitioners. For example, the treating physiotherapist stated in a report dated June 2016 that ‘[the worker] reports that they work as a delivery truck driver and that occasionally the back-roller door would close on its own, the worker reported this to their employer in the past. On this occasion, the door closed while they were under it, the worker managed to stretch their hand out and slow the door but it did still impact on their thoracic spine’. These are quite specific and clear details that have been communicated by the worker.
  43. The worker has also demonstrated a sufficient level of English language skills to work in the Australian employment market as a cleaner, fruit shop owner/operator and truck driver.
  44. In my view, the weight of information supports the injury management consultant assessment that the worker has below average listening and reading skills and average speaking and writing skills in the English language. I accept that assessment of the worker’s English language skills.
  45. Having dealt with that issue, I will now examine each employment option in more detail.
  46. Cleaning supervisors manage cleaning staff for medium to large scale cleaning products. They liaise with customers to ensure standards are met as required and ensure quality of work performed by cleaning staff. Three employers were contacted for further information about this type of employment.
  47. The first employer described functional demands including ‘manual handling items <10kg’ and ‘no pushing/puling [sic] >10kg’. It is ‘mostly supervisory duties’. There is also an ‘ability to delegate work’. While there is an ability to delegate work, it is evident that manual handling and pushing and pulling is involved that likely exceeds the worker’s capacity as assessed by the treating neurosurgeon.
  48. The second employer indicated that the work involves ‘manual handling of up to 5kg (irregular)’ which would, on its face, appear to be within the worker’s capacity. However, ‘driving between worksites’ is required to work at ‘Locations across Sydney NSW’. Further ‘Hours [of work] vary according to roster’. I am not persuaded that such work is suitable for the worker having regard to their 1-hour driving ability and capacity to only work 24 hours a week.
  49. The third employer indicated that the work involved ‘pushing/pulling <10kg’ which is unlikely to be suitable for the worker as their pushing/pulling ability is limited to 7kg. Also ‘Hours [of work] vary according to rotating roster’. That does not adequately establish if the employment is suitable for a worker with capacity for only 24 hours of work a week.
  50. I acknowledge that the nominated treating doctor indicated that cleaning supervisor employment was suitable for the worker. However, I have not accepted the nominated treating doctor’s assessment of the worker’s work capacity. I have preferred the opinion of treating neurosurgeon. Based on the treating neurosurgeon’s opinion, I am not persuaded that cleaning supervisor is employment in work for which the worker is currently suited having regard to the nature of their incapacity.
  51. I am also not persuaded that this type of employment is suitable for the worker having regard to their skills and work experience. The worker has 4–5 years of cleaning experience. The worker ‘worked as sub-contractor to other cleaning companies’. There is no mention of their supervising other cleaners in this employment. The only job in which the worker appears to have supervised staff was as a fruit and vegetable shop owner. That was for a relatively short period of eight months in a work environment that is quite different to that of a cleaning supervisor. The nature and scope of the worker’s supervisory duties in that time are not detailed which makes it difficult to assess their level of skill as a supervisor. It is also significant that this work was done in the worker’s own business. On the information before me, the worker has yet to be employed as a supervisor by an employer.
  52. The information before me about cleaning supervisors indicates that workers need a reasonably high level of skill and experience as a supervisor. Employers reported that applicants need to be able to ‘supervise, mentor and manage staff performance’ or have ‘proven experience supervising others’ or ‘provide effective leadership to cleaning personnel, including mentoring and training’. I am not persuaded that the worker currently has a suitable level of skill and work experience for employment as a cleaning supervisor.
  53. Pathology couriers collect pick up and deliver items such as pathology specimens and pharmaceuticals and deliver them to locations such as medical centres, hospitals and diagnostic laboratories. Employers of pathology couriers were contacted for information about this employment. On the face of it, the information provided does not support that this is employment in work for which the worker is currently suited.
  54. The first employer reported that ‘Driving can extend up to an hour and a half, depending on locations for delivery’. The second employer reported that the role involves ‘Driving across Sydney (journeys can vary in duration based on length and traffic)’. The third employer reported that the role includes ‘Regular driving – journeys can range in duration from very short to over an hour, depending on traffic’. I am not persuaded that pathology courier is employment in work for which the worker is currently suited having regard to their 1-hour driving ability.
  55. I acknowledge that the nominated treating doctor indicated that pathology courier employment was suitable for the worker. However, I have not accepted the nominated treating doctor assessment of the worker’s work capacity. I have preferred the opinion of the treating neurosurgeon. Based on the treating neurosurgeon’s opinion, I am not persuaded that pathology courier is employment in work for which the worker is currently suited having regard to the nature of their incapacity.
  56. Bus drivers drive buses and coaches to transport passengers over established and special routes. Obviously, driving is an inherent part of this role. The length of time driving will inevitably vary depending on passenger pick-ups and drop-offs and general traffic conditions. Employers described the role as involving ‘Sitting for extended periods’ or ‘Constant sitting’. I am not persuaded that that such employment is suitable for the worker having regard to his 1-hour driving ability.
  57. The other information before me does not support that the worker was able to return to work in ‘suitable employment’.
  58. I find that the worker had ‘no current work capacity’ in the period March 2017 to February 2018.
  59. I recommend that the insurer recalculate the worker’s entitlement to weekly payments of compensation from March 2017 to February 2018 on the basis that the worker had ‘no current work capacity’ in that period.

Merit reviewer
Merit Review Service
Delegate of the State insurance regulatory authority