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Merit review WC020/18

Our Reference: 020/18

Findings

  1. The worker has current work capacity.
  2. Secondary school teacher constitutes suitable employment for the worker

Recommendations

  1. The Authority may make binding recommendations to the insurer based on the findings of this merit review. No recommendations are made for the reasons below.

Background

  1. The worker has been receiving weekly payments of compensation for incapacity for work as a result of a psychological injury.
  2. In September 2017, the insurer decided to reduce the amount of the worker’s weekly payments of compensation from $1,480 to $354.79 on the basis that:
  • The worker had current work capacity.
  • Secondary school teacher constituted suitable employment for the worker.
  • The worker was able to earn $1,125.21 per week in suitable employment.
  • The amount of the worker’s pre-injury average weekly earnings was $1,850.
  1. The worker referred that decision for internal review. In November 2017, the insurer decided to affirm its work capacity decision.
  2. In December 2017, the Authority received an application for merit review. The application complied with the requirements of section 44BB of the Workers Compensation Act 1987.
  3. In January 2018, the Authority emailed the worker and the insurer to advise them that it understood that the decisions about current work capacity and suitable employment were the only ones in dispute. The Authority gave the worker and the insurer an opportunity to provide submissions to clarify that understanding. No submissions were received. Accordingly, this review will proceed on the basis stated by the Authority in its email.

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)

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 submissions in the application for merit review focus on the unfairness of the insurer’s decision and the financial hardship it puts them under. The worker has also referred to the submissions they made in their application for internal review, which I have read and considered.
  2. The insurer submits in reply that the work capacity decision should be maintained. It submits that the worker has a present inability arising from an injury such that they are not able to return to work in their pre-injury employment. Further, the worker has current work capacity and is able to earn $1,125.20 per week in suitable employment as a teacher. The amount of the worker’s pre-injury average weekly earnings is $1,806.89 (indexed to $1,850). The worker is entitled to weekly payments of compensation to a maximum amount of $354.79 under section 37(3) of the 1987 Act. The insurer then refers to its work capacity decision and internal review decision notices for further detailed reasons.

Reasons

Nature of merit review

  1. This is a merit review of the insurer’s work capacity decisions about the worker’s current work capacity and about what constitutes suitable employment for the worker. The insurer’s decision to reduce the worker’s weekly payments of compensation hinged on its decisions that the worker had current work capacity and secondary school teacher constituted suitable employment for them. I must consider the information before me afresh and make the most correct and preferable findings.

Current work capacity

  1. The terms ‘current work capacity’ and ‘no current work capacity’ 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 January 2017, an injury management consultant prepared a file review report for the insurer. They stated that the prognosis for a return to pre-injury duties was ‘guarded’. They further stated that the ‘fact that the NTD [nominated treating doctor] has mentioned that a “compassionate transfer” has been asked for on a regular basis suggests that it is the worker’s desire to work at a location other than their substantive position’.
  3. In January 2017, the treating psychologist prepared a report. The psychologist stated that the worker’s presentation had improved since their early meetings with them, and stated that the worker’s Depression Anxiety and Stress Scale scores had also improved. They recommended that ‘I believe the worker is ready to return to work, at least part time, and that it would benefit them as long as it is not in the same work place’.
  4. In May 2017, a clinical psychologist prepared a report for the insurer about the worker’s psychological treatment. The covering letter stated:

In my opinion, psychological treatment is not required as the worker’s symptoms have resolved, they are coping well psychologically, and is commencing a return to work on part time hours.

  1. In June 2017, the nominated treating doctor (NTD) issued a certificate of capacity for the worker. The NTD certified the worker with ‘anxiety related to numerous and repeated episodes at work’. The NTD stated that the worker was to ‘continue to see pstchologist [sic]re relaxation, stress management, not to work at the pre-injury location due to ptsd after location specificexperiences’. They certified that the worker had capacity to work eight hours a day, two days a week.
  2. In June 2017, the rehabilitation consultant at occupational rehabilitation services provider, prepared a ‘return to work plan number 1’. The ‘overall return to work goal’ was to ‘return to pre-injury duties as a teacher at a school other than the pre-injury location’. The return to work plan stated that the worker could work at a different location two days a week. The return to work plan stated that the worker was ‘concerned about the two hour each way commute required from their home stating that this would be a barrier to an increase in hours’.
  3. In June 2017, the NTD certified the worker with ‘anxiety and depression work related’. The NTD stated ‘continue to see psychologist regularly, treatment for aniety [sic] relaxation therapy.support [sic] during return to work program., [sic] not to return to pre-injury location due to PTSD from their time working there’. The NTD also stated ‘much less stress but hasnt [sic] experienced work as yet so unsure of how the worker will cope once they return to work’. They certified the worker with capacity to work eight hours a day, three days a week.
  4. The NTD issued another certificate of capacity dated June 2017. The NTD revised their opinion about the worker’s work capacity and now certified that the worker had capacity to work eight hours a day, two days a week. The worker also declared in Part C of the certificate that they had ‘worked at the different location as per return to work program’.
  5. In July 2017, the rehabilitation consultant produced a workplace assessment report. The purpose of the workplace assessment was to see if the alternate role at the different location offered by the pre-injury employer was suitable for the worker. The rehabilitation consultant reported that the worker ‘agreed that all duties being offered to them were suitable and within their capacity’. However, the return to work plan ‘was not endorsed by the worker or their nominated treating doctor’ because the worker found the travel to work ‘too onerous’.
  6. In August 2017, the NTD issued another certificate of capacity. They certified that the worker had ‘work related anxiety and depression, ready to return to some work but nothing has been provided to see how the worker is’. The NTD recommended that the worker ‘continue to see psychologist, gradual return to work, not to work at the pre-injury location’ and certified that the worker had capacity for eight hours a day, three days a week.
  7. In September 2017, the treating psychologist produced a report. They reported that the worker’s ‘presentation’ had previously improved up to the point at which they ‘regarded the worker as fit to return to significant suitable duties on their return to full employment’. However, they considered that the worker ‘has declined to some degree since then’.
  8. In October 2017, the NTD issued another certificate of capacity and certified that the worker had ‘work related stress and anxiety, progressing well’. The NTD further stated that the worker ‘will probably be fit for full time work next year and will return to full time teaching’ but ‘not to return to the pre-injury location’ and ‘not to travel greater than 100km to and from work’. Subject to those conditions, the NTD considered that the worker could work eight hours a day, three days a week.
  9. In December 2017, the NTD issued a further certificate of capacity. The worker was certified with capacity to work eight hours a day, three days a week on the condition that they are not to travel more than 100km to work and ‘not to work at the pre-injury location’. The worker declared in Part C of the certificate that they worked three days as a polling official at the local by-election and some other casual work. Pay slips have been provided to prove that employment.
  10. In December 2017, an injury management consultant and general practitioner, examined the worker for the insurer. They stated:

…I have no doubt that if a temporary placement could be found that the worker would be able to go straight back to full time work if necessary though a very short period of restricted hours (say 2–4 weeks) would not be unreasonable. The NTD and the worker are agreeable to this.

They should not return to the pre-injury location as this will almost certainly result in an exacerbation of symptoms.

  1. Both the NTD and the injury management consultant have stated that the worker should not return to work at the pre-injury location due to their injury. The treating psychologist has also indicated that a return to work would benefit the worker ‘as long as it is not in the same work place’.  The weight of information supports that the worker has a present inability arising from an injury such that they are not able to return to work in their pre-injury employment.
  2. The issue is then if the worker is able to return to work in ‘suitable employment’ as defined by section 32A of the 1987 Act:

suitable employment, in relation to a worker, meansemployment in work for which the worker is currently suited:

(a)    having regard to:

(i)         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

(ii)        the worker’s age, education, skills and work experience, and

(iii)       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

(iv)       any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

(v)        such other matters as the Workers Compensation Guidelines may specify, and

(b)    regardless of:

(i)         whether the work or the employment is available, and

(ii)        whether the work or the employment is of a type or nature that is generally available in the employment market, and

(iii)       the nature of the worker’s pre-injury employment, and

(iv)       the worker’s place of residence.

  1. The nature of the worker’s incapacity and the details in the medical information, including the certificates of capacity, support that the worker is able to return to work as a secondary school teacher subject to the following conditions.
  2. First, the worker is not able to return to work at the pre-injury location because it would likely exacerbate their psychological injury.
  3. Second, the worker is only able to return to work initially on part-time hours. The NTD has certified that the worker is able to work eight hours a day, three days a week. In my view, that certification is supported by the injury management consultant’s opinion that ‘a very short period of restricted hours (say 2–4 weeks) would not be unreasonable’. I consider that the opinions of these qualified doctors hold decisive weight.
  4. Third, the worker is not to travel greater than 100km to and from work as certified by the NTD. Although, it is important to point out that ‘suitable employment’ must be assessed regardless of the worker’s place of residence: section 32A(b)(iv). That means the worker’s place of residence cannot be considered in assessing what constitutes ‘suitable employment’ for them. Once that factor is disregarded, an ability to travel up to 100km to and from work is more than adequate for return to work as a secondary school teacher given the prevalence of high schools across NSW.
  5. The worker is age 53. They have completed the necessary education to be a qualified secondary school teacher. Further, their employment as a secondary school teacher for many years supports that they have a suitable level of skill and work experience for it.
  6. The rehabilitation consultant prepared a plan as part of the return to work planning process which identified employment as a secondary school teacher on a part-time basis at a school other than the pre-injury location. That employment was consistent with the nature of the worker’s incapacity. The suitability of that workplace was verified by a workplace assessment. The worker in fact returned to work in those duties and, other than the issue of travel distance, they completed the work successfully. In the circumstances, the type of employment arranged through the return to work plan supports that there is employment in work for which the worker is currently suited.
  7. The worker has been provided with some occupational rehabilitation services to help them improve their job-seeking skills. In the circumstances of this case, it is difficult to see what further occupational rehabilitations services could be provided to the worker to prepare them for a return to work in suitable employment. The worker is already sufficiently educated, skilled and experienced to work as a secondary school teacher.
  8. Based on the information before me, the main barrier for the worker returning to work as a secondary school teacher is finding a suitably located school in relation to their place of residence. However, suitable employment must be assessed regardless of the worker’s place of residence. When that factor is disregarded, the available information supports that employment as a secondary school teacher is employment in work for which the worker is currently suited.
  9. I acknowledge the difficult position this puts the worker in given that they do in fact currently live in a rural area. However, I must apply the law as it stands.
  10. I find that secondary school teacher constitutes ‘suitable employment’ for the worker as defined by section 32A of the 1987 Act.
  11. I find that the worker has ‘current work capacity’ as defined by section 32A of the 1987 Act which is a present inability arising from an injury such that they are not able to return to their pre-injury employment but is able to return to work in suitable employment.
  12. These findings align with the insurer’s work capacity decision. I do not consider that a binding recommendation to the insurer to trigger a review decision is necessary. The insurer’s work capacity decision stands.

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