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Our ref. WC004/18

Date of Review: September 2017
Our Reference: 004/18

Findings

  1. The worker has ‘no current work capacity’ under section 32A of the Workers Compensation Act 1987 (the 1987 Act).
  2. The worker is entitled to weekly payments of compensation at the rate under section 37(1) of the 1987 Act.

Recommendation

  1. The Insurer must recalculate the worker’s weekly payments of compensation from the date of the work capacity decision to the date of this review in line with the findings above.
  2. This recommendation is binding on the Insurer and must be given effect to by the Insurer under section 44BB(3)(g) of the Workers Compensation Act 1987.

Background

  1. The worker claims that while working they got out of their chair to assist a client, twisted their knee, and felt pain in their right knee on the date of injury. MRI confirmed a cartilage tear. The Insurer accepted liability for weekly payments of compensation to the worker for incapacity for work resulting from the injury.
  2. The Insurer made a work capacity decision to reduce the amount of the worker’s weekly payments of compensation to $0.00 on the basis that:
    • The worker had current work capacity.
    • Employment as an office manager, human resources manager/officer, or sales manager constituted suitable employment for the worker.
    • The worker was able to earn $950 per week in suitable employment.
    • The amount of the worker’s pre-injury average weekly earnings was $1,110.
    • The rate of compensation was calculated under section 37(3) of the Workers Compensation Act 1987.
  3. The worker referred that decision for internal review by the Insurer. The Insurer affirmed the decision to reduce the amount of the worker’s weekly payments to $0.00.
  4. The Authority received the application for merit review. It was made in the approved form and in time under section 44BB(3)(a) of the Workers Compensation Act 1987.

Legislation

  1. The legislative framework governing 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: section 44BB(3)(e). Recommendations are binding on the Insurer and must be given effect to by the Insurer: 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 indicates in their application for merit review that they want reviewed the Insurer’s decision to reduce the amount of their weekly payments of compensation on the basis that they have current work capacity. The worker submits that they have no current work capacity for any employment. The worker submits that the Insurer has not taken into account the effects of their pre-existing condition (including recent surgery) in assessing that they have current work capacity. They also still need knee surgery and they will be able to go back to work after they have recovered from that surgery. They continue to have depression as a result of their knee pain and employment issues. The worker has provided a number of reports from treating health practitioners in support of their submissions.
  2. In reply, the Insurer accepts that the worker injured their right knee. It submits that certificates of capacity support that the worker has capacity for full-time employment with restrictions. It acknowledges that the worker has only recently been certified by their treating doctor as having no current work capacity.
  3. The Insurer submits that the worker has ‘the necessary functional and vocational capacity to work as an Office Manager, Human Resources Manager/Officer and Sales Manager’ and that these constitute ‘suitable employment’ under section 32A of the 1987 Act.
  4. The Insurer submits that the worker ‘is recovering from surgery for a non-compensable condition’ and as such it relied on the current certificate of capacity at the time of the internal review. Also, the worker was certified with work capacity despite not yet having had knee surgery. It has approved the worker’s knee surgery and notified the treating surgeon and the private hospital. It acknowledges that the worker has depression but submits that at the time of the internal review decision the worker was still certified with work capacity.
  5. The Insurer submits that the worker has been paid 35 weeks of compensation and the rate of weekly payments of compensation is calculated under section 37(3) of the 1987 Act to be $0.00.

Reasons

Nature of merit review

  1. This is a merit review of the Insurer’s decision to reduce the amount of the weekly payments of compensation payable to the worker to $0.00 on the basis that, among other things, they have current work capacity. As the delegate of the Authority, I must consider all of the information before me afresh, on its merit, and make findings that are most correct and preferable.

Current work capacity

  1. The terms ‘current work capacity’ and ‘no current work capacity’ are defined in 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. The certificate of capacity of August 2017 shows that the worker is certified with no capacity for any employment up to September 2017. The factors delaying recovery are stated to be ‘in post operative recovery stage following [surgery], awaiting clearance by [specialist] to go ahead with knee operation’. That surgery relates to treatment for a condition that pre-existed the work injury.
  3. Up until that recent certificate, the certificates of capacity show that the worker was, by and large, consistently certified with capacity for ‘normal’ hours of work with:
    • Lifting/carrying capacity of 5kg
    • Sitting as tolerated
    • Standing as tolerated
    • No pushing/pulling ability
    • No bending/twisting/squatting ability
    • Not driving partly due to knee but also compounded by the pre-existing condition.
  4. The issue is whether the effects of the pre-existing condition form part of ‘a present inability arising from’ an injury in 2016. If it is, it can be taken into account for assessing if, and to what extent, the worker has current work capacity. Otherwise, it cannot.
  5. In October 2016, the then treating doctor, referred the worker to an orthopaedic surgeon to investigate ‘persistent right knee pain since February 2016’. The referral letter noted that the worker had ‘active’ conditions including ‘[the pre-existing condition]’.
  6. In October 2016, the orthopaedic surgeon reported that the worker’s knee injury ‘is now affecting their day to day activities and their work, as well as their ability to mobilise and their life in general...’ and recommended arthroscopic surgery. The orthopaedic surgeon noted that the worker told them that ‘they have had [the pre-existing condition]’.
  7. In November 2016, the orthopaedic surgeon responded to questions from the Insurer:
    • Has the worker sustained an aggravation or exacerbation of their pre-existing condition? If so, what was the aggravation caused by the workplace incident?

      Obviously I did not review the worker prior to their injury at work, but the patient reports a change in their symptoms at the time of their injury.It has clearly exacerbated any underlying disease that they may have had at the time.

      Are there any non-work related, lifestyle or psychological factors, such as cardiovascular issues, high blood pressure or mental health issues that are contributing to their present condition and their recovery?


      Yes the worker has some issues including [the pre-existing condition] for which they were taking [medication]. I feel that these will have some impact on their recovery [...]
  8. In February 2017, the treating doctor responded to questions from the Insurer, relevantly as follows:
    • Yes. The worker often presented with psychological distress during the consultation due to stress from work (being made redundant) and their knee pain together with their [pre-existing condition] which they are still waiting for a definite treatment.
    • They have had depression [in the past] – not treated by me and I do not know much about it – I have only seen them recently for their knee problem.
  9. In April 2017, the then treating specialist for the pre-existing condition, reported:
    • The worker is my patient. I have been seeing them for [the pre-existing condition], which requires [surgery]. This condition is associated with [various side-effects]. They also currently have [another condition] that is newly diagnosed and not yet optimally controlled, and new [dysfunction] under the care of [another specialist]. I don’t feel it is in their best interest to proceed with elective (non urgent) knee surgery at this time, until the above medical conditions are investigated and managed accordingly.
  10. In May 2017, the treating psychologist wrote to the worker:
    • Thank you for contacting me. I note that you have requested a written summary of your initial presentation and are seeking understanding regarding the aetiology of a number of your currently diagnosed disorders…


      …Contributing factors for the development of this depressive episode for the worker are undoubtedly related to the cessation of their employment and pain/disability associated with their right knee injury. There was a specific question raised: Was [the pre-existing condition] aggravated and/or caused by the worker’s depressive disorder. This is challenging to answer as it crosses boundaries across several specialities. The [pre-existing condition] is a disorder caused by [certain factors]. Depression itself has been demonstrated to have an exacerbating effect on [these factors]. The timeline of diagnosis for the worker indicates that the Depression and Knee Injury were identified first. Specifically that the worker has a history of depression which was intensified by the knee injury. Following this the symptoms of [the pre-existing condition] became intense and were identified by [a specialist]. Based on the interactive nature of disorders such as depression and physical ailments as well as the timeline of events my opinion would be that it is highly likely the depression inflamed the [pre-existing condition]. I would, however, recommend seeking a second opinion from a specialist in [such] disorders.
  11. In June 2017, the specialist treating the pre-existing condition reported:
    • The worker has developed recurrence of [the pre-existing condition] over the past 2-3 years (at minimum). This has led to substantial [side-effects] which would have substantially contributed to their risk of work injury. The worker did develop a knee injury at work which would have exacerbated their overall symptomology. They have struggled from many aspects of the [pre-existing condition], including depression, which is impairing their ability to quickly return to work, along with the knee injury. They have just undergone [surgery for pre-existing condition] (9/6/17) to remove the [factor] causing the disease and whilst this surgery was deemed a success, the [effects] frequently cause other physical difficulties including fatigue and nausea which can be quite disabling for many months after successful surgery. It is eventually hoped they will make a good recovery and be able to return to work, but this may take time and it should be considered as a factor in extending their worker’s compensation cover. They still require surgery on their knee which won’t be able to be carried out until they are fit enough to undergo surgery again.
  12. The treating specialist’s report dated June 2017 holds significant weight and the treating specialist is appropriately qualified, skilled and experienced to give an opinion on the effect of pre-existing condition on the worker. The treating specialist stated that the work injury ‘would have exacerbated their overall symptomology’. In my view, that supports that the worker’s knee injury exacerbated, to some extent, the effects of the pre-existing condition. It supports that the worker’s present inability arising from an injury in 2016 includes a mix of the effects of their knee injury and the pre-existing condition—but only to the extent of the exacerbation of the pre-existing condition.
  13. I do not consider that the medical information supports that the worker’s complete inability to work, as certified by the treating doctor in August 2017, arises from the injury in 2016. It is evident to me that the worker’s inability to do any work arises from the surgery to remove the cause of the pre-existing condition and, as the treating specialist put it, the ‘physical difficulties including fatigue and nausea which can be quite disabling for many months after successful surgery’. The treating specialist stated that the surgery was to remove what was ‘causing the disease’. The treating specialist further stated that the worker had ‘recurrence of [the pre-existing condition] over the past 2-3 years (at minimum)’ indicating that the object, which caused the disease, pre-existed the work injury. Thus, the surgery (and subsequent disabling effect) did not arise from the work injury’s exacerbation of the pre-existing condition. It arose from the root cause of the disease which pre-existed the work injury.
  14. Therefore, I consider that the certificates of capacity leading up to August 2017 give the most reliable assessment of the ‘present inability arising from’ the injury in 2016. It is apparent to me from those certificates of capacity that the treating doctor took into account the extent to which the work injury exacerbated pre-existing condition to assess the worker’s work capacity. For example, in the certificate issued in May 2017, the treating doctor stated in the section ‘factors delaying recovery’ that there was ‘newly diagnosed [pre-existing condition], awaiting surgery for same due on…’. Further, in the section ‘driving ability’ the treating doctor stated ‘not driving partly due to knee but also compounded by [the pre-existing condition]’.
  15. The certificates of capacity up to August 2017 support that the worker has capacity to work in ‘some type of employment’ for ‘normal’ hours of work and ‘normal’ days per week with:
    • Lifting/carrying capacity up to 5kg
    • Sitting tolerance ‘as tolerated’
    • Standing tolerance ‘as tolerated’
    • No pushing/pulling ability
    • No bending/twisting/squatting ability
    • No driving ability.
  16. The worker’s injury claim form signed by the worker and dated October 2016 indicates that they were employed ‘full-time’ with the pre-injury employer. I infer that the treating doctor’s reference to ‘normal’ hours of work in the certificates of capacity means ‘full-time’ work.
  17. I find that the worker has a present inability arising from an injury in 2016 such that they are able to return to full-time employment within the following limits:
    • Lifting/carrying capacity up to 5kg
    • Sitting tolerance ‘as tolerated’
    • Standing tolerance ‘as tolerated’
    • No pushing/pulling ability
    • No bending/twisting/squatting ability
    • No driving ability.
  18. The certificates of capacity show that the worker has not been certified as ‘fit for pre-injury duties’. I find that they have a present inability arising from an injury such that they are not able to return to their pre-injury employment.
  19. The issue is then if the worker is able to return to work in ‘suitable employment’ as defined under section 32A of the 1987 Act:
    • 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 WorkCover Guidelines may specify, and
    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.
  20. The worker was made redundant by the pre-injury employer in 2016. They are not currently employed. As part of the return to work planning process, the occupational rehabilitation provider prepared a vocational assessment report to assess the worker’s return to work options. It assessed employment as an office manager, human resources manager/officer or sales manager to be suitable for the worker. The vocational assessment report stated at page 4:
    • A Medical Case Conference was conducted with the worker, treating doctor and rehabilitation services present on xx.xx.2016 to discuss the vocational options listed…


      The treating doctor confirmed that the worker could pursue new employment in a sedentary-light role with full time hours and confirmed the Suitable Employment Options proposed in this report were appropriate for their return to employment.
  21. The occupational rehabilitation provider provided a written outline of the duties of each of the roles to the treating doctor. In a signed document dated December 2016, the treating doctor indicated that they supported the worker’s return to work as an office manager, human resources manager, and sales manager. In a report dated February 2017, the treating doctor reiterated this opinion: ‘I think that the worker currently has the physical capacity to perform all 3 roles as mentioned in the vocational assessment. And of course they should be in [a] better position after having their knee arthroscopy (after 6 weeks of post-surgery rehab)’. The worker has submitted that ‘once I have my knee surgery and have recovered I can then commence work’. However, that submission is not supported by the medical opinion of the treating doctor. None of the other medical practitioners have specifically addressed the worker’s suitability for these employment options in the information before me.
  22. The employment options identified in the vocational assessment report are described as ‘sedentary’ physical demand. Essentially, they are clerical office jobs. The general job descriptions and the information gathered from specific employer contacts supports that such employment is within the worker’s capacity to work. Employers indicated that such employment would suit a worker with a 5kg lifting and carrying limit, the need to alter posture as needed, and an inability to push, pull, bend, twist, squat and drive.
  23. On balance, I accept that there is employment in work as an office manager, human resources manager/officer or sales manager for which the worker is currently suited having regard to the nature of their incapacity.
  24. However, suitable must also be assessed having regard to the worker’s age, education, skills and work experience.
  25. The worker is in middle-age. They have had education and training in a number of vocational fields since they completed Year 10 high school. On skills, the vocational assessment report stated on page 13 that the worker ‘demonstrated excellent English communication skills throughout the assessment’ and that ‘The worker reported that they are comfortable using computers and advised that they are able to use common software such as Microsoft Word, Excel and Power Point as well as internet browsers, points of sale systems and email’. Further, it stated that ‘The worker also reported that they are competent in the use of MYOB and other Payroll systems, they also have experience with specific company devices such as tablets’. There is an extensive list of transferrable skills listed in the vocational assessment report on page 14. The worker’s work experience is recorded as: sales assistant, receptionist, control room managers assistant, data entry, security call centre operator, sales support officer, administrative assistant, property officer, and administration/return to work coordinator/payroll/disability support.
  26. Each of the employment options suggested by the occupational rehabilitation provider are manager roles. The worker’s education, skills and work experience do not support that they are currently suited to work as an office manager, human resources manager/officer, or sales manager.
  27. The worker’s education for management is limited and only in very specific areas such as call centre management for security operations centres.  More importantly, the worker’s skills and work experience are not in management. For example, their duties in administration/return to work coordinator/payroll/disability support required them to provide assistance ‘to managers’ in clerical, administrative and general office areas. It appears there was some ‘coordination and management of external service providers’ as a return to work coordinator but that is but one function in a very diverse role providing administration, return to work coordination, payroll, and disability support. Outside of that, the worker’s skills and work experience are in non-managerial positions: property officer assisting the Property Management Team with reception/general office duties, administrative assistant, sales support officer, control room manager’s assistant, receptionist, and sales assistant.
  28. The job descriptions for office manager, human resources manager/officer, and sales manager state that a worker needs managerial skills and experience in areas such as, for example:
    • Monitor the work performance of staff.
    • Coordinate personnel activities such as hiring, promotions, performance management, payroll training and supervision.
    • Determine, implement, monitor, review and evaluate human resource management strategies.
    • Advise and assist other managers in applying sound recruitment and selection practices, and appropriate induction, training and development programs.
    • Develop and implement performance management systems to plan, appraise and improve individual and team performance.
    • Direct merchandising methods and distribution policy by coordinating the work of salespersons.
    • Directs sales methods and arrangements.
  29. The information before me does not support that the worker has adequate skills and work experience in these areas. They may have some relevant transferrable skills but there are important areas, such as those listed above, in which the worker plainly lacks key skills and experience. The occupational rehabilitation services provided to the worker have not adequately addressed these deficits in education, skill and work experience.
  30. I am not persuaded that employment as an office manager, human resources manager/officer, or sales manager is employment in work for which the worker is currently suited having regard to their age, education, skills and work experience.
  31. The occupational rehabilitation provider prepared a progress report dated March 2017 which referred to the worker being offered employment as a disability support worker. The report stated:
    • Within this [job-seeking] meeting, the worker confirmed they had received a second job offer as a support worker with a new employer. Therefore, the possibility of suitable duties with the new employer until the time of the worker’s surgeries was discussed. The occupational rehabilitation provider suggested the potential for contacting the new employer to conduct a Workplace Assessment with the aim of the worker commencing this job opportunity prior to their surgeries. The worker confirmed that they had been in close contact with the Human Resources Manager with the new employer and would like the occupational rehabilitation provider to contact the Human Resources Manager to schedule a Workplace Assessment. The occupational rehabilitation provider contacted the Human Resources Manager, however, they confirmed that they would be happy for the worker to commence with their position as a Support Worker once they have had their surgery and is fully recovered.
  32. The Human Resources Manager’s response was that the worker would be employed after they ‘have had their surgery’ and is ‘full recovered’. Indeed, the position description for the role states that the ‘essential duties and responsibilities’ include an ‘ability to provide assistance with tasks of daily living including personal care, manual handling, behaviour support, the administration of medication. Also required is an ‘ability to drive a vehicle with capacity for 6-10 people and operate general household requirement [sic, equipment], i.e. vacuum cleaner, washing machine’.
  33. The worker has significant limits on their capacity to lift and carry and is unable to push, pull, bend, twist or squat. The nature of that incapacity is plainly unsuited to the physically demanding tasks of daily living disability support including personal care and manual handling. Also, the worker is unable to drive. I note that the treating doctor did not support the option of disability support worker for the worker in the correspondence to the occupational rehabilitation provider in December 2016. The treating doctor indicated that it was an option to consider ‘post knee surgery’.
  34. I am not persuaded that disability support worker is employment in work for which the worker is currently suited having regard to the nature of their incapacity.
  35. Based on the information available, there is no ‘suitable employment’ that the worker is able to return to work in. I find that the worker has ‘no current work capacity’—a present inability arising from an injury such that they are not able to return to work, either in their pre-injury employment or in suitable employment.

Entitlement to weekly payments

  1. It is common ground that the worker has been paid around 35 weeks of compensation and is in the second entitlement period (weeks 14­—130 of weekly payments).
  2. In May 2017, the Insurer decided to reduce the amount of the worker’s weekly payments of compensation to $0.00. I instead recommend that the worker’s weekly payments of compensation be calculated under section 37(1) of the 1987 Act as follows:
    • The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:

      (AWE × 80%) − D, or

      MAX − D,


      whichever is the lesser.
  3. It follows that the Insurer is required to make a ‘review decision’ to give effect to this recommendation and set out the calculation of the weekly payments of compensation payable to the worker.

Merit Reviewer
Merit Review Service
Delegate of the State Insurance Regulatory Authority