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Merit review WC027/18

Our Reference: 027/18
Date of review: July 2018

Findings on review

  1. The following are findings made by the State Insurance Regulatory Authority (the Authority) on review and are to be the basis for the Insurer’s review decision.
  2. The Worker has “no current work capacity” as defined in section 32A of the Workers Compensation Act 1987 (the 1987 Act).
  3. From September 2017, the Worker has an entitlement to weekly payments of compensation under section 37(1) of the 1987 Act.

Recommendations based on findings

  1. The following recommendation is binding on the Insurer and must be given effect to by the Insurer under section 44BB(3)(g) of the 1987 Act.
  2. The Insurer is to determine and pay the Worker’s entitlement to weekly payments in accordance with the above findings.

Background

  1. The Worker has received weekly payments of compensation from the Insurer as a result of an injury they sustained during the course of their employment as a care service employee with the pre-injury employer.
  2. In May 2017, the Insurer made a number of work capacity decisions. It found that the Worker was able to return to work in suitable employment and they had current work capacity. The Insurer also decided to reduce the Worker’s entitlement to weekly payments of compensation to nil effective from September 2017.
  3. The Worker referred the work capacity decisions for internal review by the Insurer. In September 2017, the Insurer affirmed its original decisions.
  4. The Worker then made an application for merit review which was received by the Authority in September 2017. The application has been made within 30 days, as required under section 44BB(3)(a) of the 1987 Act.

Legislation

  1. The legislative framework governing work capacity decisions and reviews is contained in the:
  2. Section 43 of the 1987 Act describes a “work capacity decision”.
  3. Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.

Information considered

  1. The information I have 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 parties.

Submissions

  1. A solicitor from the Worker’s legal representatives assisted the Worker in making their application for merit review. The following work capacity decisions of the Insurer are referred for merit review:
    • a decision about the Worker’s current work capacity
    • a decision about whether, as a result of the injury, the Worker is unable (without substantial risk of further injury) to engage in employment of a certain kind because of the nature of that employment
    • any other Insurer decision that affects the Worker’s entitlement to weekly compensation payments
  2. The Worker makes the following submissions in support of their application for merit review:
  • Ground 1, procedural fairness. The Insurer had failed to provide them the work capacity assessment documents relied upon in its decision. These documents should be disregarded in their entirety as they significantly prejudice the Worker.
  • Ground 2, suitable employment. The roles identified as “suitable employment” in the work capacity decision do not have regard to the appropriate education, skills and work experience they have.
  • Employment as a customer service officer: with respect to the skills and experience required of the role, it is clear that their employment history almost entirely consists of roles that re physical and manual in nature. They held the position of data entry clerk from 1984 – 1985 and therefore it is unlikely that any skills they have retained are consistent with current technology. They have been unable to demonstrate excellent written communication skills or computer literacy. Further, they suffer from cognitive impairment and anxiety arising from a work related psychological injury. They are often unable to speak in a calm and coherent manner or understand and retain simple instructions.
  • Employment as an aged care receptionist: The work capacity decision identifies the role to be suitable as “they are computer literate and therefore would be considered as a competitive candidate”. It would appear this statement is based on the assumption that they have become proficient following a one month ‘workforce training course’ which provided them with basic computer skills in creating simple documents. It is clear that any computer skills held by them have not been demonstrated and therefore they are disadvantaged given that proficient computer skills and experience are widely held by jobseekers. They have not entered data into a database since 1985 and does not have sufficient experience, skill or current knowledge in this area. Further, despite their history in customer service roles, their current psychological condition prevents them from demonstrating these skills and their difficulty in doing so may exacerbate their anxiety.
  • The Insurer’s submissions in reply to the Worker’s application are summarised below:
    • A claim file note, dated June 2017, confirmed that the Worker had received the work capacity decision notice. The documents relied upon by the Insurer in making the work capacity decision were sent to the Worker.
    • In June 2017, the Worker was certified by the treating doctor fit for suitable duties of 32 hours per week with restrictions.
    • The treating doctor confirms that the Worker has reached maximum medical improvement and would require a new suitable job.
    • The vocational assessment report dated October 2016 confirms that customer service officer and aged care receptionist is suitable employment for the Worker.
    • In relation to employment as a customer service officer, the Insurer details employer comments obtained from a Government service office, a Council, and a home health care service. The Insurer also notes that the Worker completed a workplace training course between March and April 2017 and the Insurer provides details of the training and feedback from the Worker. The Worker has confirmed they have adequate computer skills and that they are proficient with using Microsoft Office programs and would have an interest with using Microsoft Excel. They are familiar with Citrix which is a medical database. The Worker was performing office duties whilst working their suitable duties as an assistant in nursing with the pre-injury employer. These skills developed in them suitable duties would be appropriate transferrable skills and experience.
    • In relation to employment as an aged care receptionist, the Insurer details employer comments obtained from an aged care centre, a retirement community, and an aged care service. The Insurer submits the Worker has acquired recent documentation experience and inputting data whilst working as an assistant in nursing and they are familiar with aged care terminology. Therefore, it could be likely that the Worker could enter this role without further qualifications. They have self-reported that they have adequate computer skills and they have completed a workplace training course. The closure report from the injury management consultancy confirms that the Worker has self-enrolled and commenced a Certificate III in Business Administration (Medical) with an adult education institution in April 2017. It also confirms that they are now competent to job seek independently.
    • In October 2016, the treating doctor provided his support for the vocational options.
    • The suitable employment options identified by Healthy Ability [sic] were in accordance with section 32A of the 1987 Act taking into account the Worker’s education, work history, transferrable skills, age and functional capacity.
    • The Insurer deems that the Worker is able to earn $25 per hour, or $800 per week, in the role of aged care receptionist.
    • The Insurer has reasonably excused the Worker’s claim for a psychological injury dated December 2014 with their pre-injury employer.
    • The Worker has been in receipt of weekly benefits for 40 weeks as of XX September 2017.
    • The work capacity decision is effective from September 2017 and as a result the Worker’s weekly benefits have been reduced to $0.00 as per section 37(3)(a).

    Reasons

    Nature of merit review

    1. This matter involves a merit review of the work capacity decisions of the Insurer in accordance with section 44BB(1)(b) of the 1987 Act. The review is not a review of the Insurer’s procedures in making the work capacity decision and/or internal review decision.
    2. The review requires that I consider all of the information before me substantively on its merits and make findings and recommendations that, in light of the information before me, are most correct and preferable.
    3. The Worker makes submissions regarding a psychological injury. It is only the injury that was subject to the original work capacity decision that the Authority is able to review. Given the psychological injury is subject to a separate claim for compensation, which the Insurer “reasonably excused”, these findings and recommendations will be confined to a review of the lumbosacral injury only.
    4. Also, the Authority can only review the work capacity decisions of the Insurer with respect to the weeks covered by those decisions. In this matter, the Insurer advised that its original work decisions became effective on XX September 2017. Accordingly, any recommendations made by the Authority will apply to weekly payments of compensation from that date.

    Current work capacity and suitable employment

    1. The Worker commenced their pre-injury employment as a care service employee in 2008. They worked in a high care unit and assisted residents to shower, to complete personal care tasks and made beds.
    2. In May 2016, the Worker experienced immediate lumbosacral pain while assisting a resident with toileting. They reported later that day to their supervisor and advised of the incident and their pain. They then consulted with their treating doctor in early June 2016, who had remained as the nominated treating doctor until July 2017.
    3. The most recent certificate issued by the treating doctor is dated XX June 2017. The Worker is certified with the capacity to return to some type of employment for a maximum of 4 days a week,
      8 hours per day. The treating doctor certifies that the Worker is “not able to return to work as a Case Service Employee due to the physical demands of their job that aggravate the back injury which also affects their capacity to do their own ADLs.” He recommends that the Worker has reached maximum medical improvement and also that they require a new suitable job. He places several recommendations on the Worker’s ability to lift, carry, sit, stand, push, pull, bend, twist and squat.
    4. In assessing whether the Worker has “current work capacity” or “no current work capacity”, I am required to refer to the definitions under 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

    1. The above definitions require me to consider whether the Worker can return to work, both in their pre-injury employment and in suitable employment.

    Suitable employment

    1. “Suitable employment” is defined in section 32A of the 1987 Act as:
    2. 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 physiotherapist/rehabilitation consultant with the injury management consultancy, conducted a vocational assessment of the Worker on XX October 2016. Her findings and recommendations are set out in a report dated XX October 2016.
    2. Employment as a customer service officer, aged care receptionist and lifestyle leisure officer is proposed as being suitable employment.

    Customer Service Officer

    1. The rehabilitation consultant reports that a customer service officer may respond to a variety of customer requests and inquiries via the telephone or in person over the counter. She reports having contacted three employers to further explore the vocational requirements of the role.
    2. The Government service office advised that the role is predominately administrative, being completed at the desk responding to customer enquiries and managing patient files. The home health care service employer similarly stated the role is administrative.
    3. In considering the Worker’s employment history, I note that in 1984 and 1985 they worked in administrative roles as a data entry clerk and as a production assistant. More recently they have worked as a waitress, dry cleaner, pie shop assistant, sewing machinist, kitchen hand, delivery driver, belly dance tutor, product line assembler and as an assistant in nursing.
    4. The Worker performed suitable duties after their injury until February 2017. They would assist with resident meals and fluids, partake in one on one activity, tidy rooms, resident document on PPC as per daily activity list, make beds, and perform office work as required.
    5. The rehabilitation consultant does not reveal what “office work as required” includes. Despite the rehabilitation consultant’s reference to how the Worker would input data into a database at the pre-injury employer, office work as required appears to be a minor part of the duties performed by the Worker both in their suitable duties and in their pre-injury work.
    6. In this respect, I note that a workplace assessment report prepared by the rehabilitation consultant on XX July 2016 to “evidence the core requirements of the worker’s pre-injury role” does not indicate that the Worker performed any administrative duties at work. A psychologist describes in a report dated XX August 2017 that the Worker was offered suitable duties after the injury which included sitting in the office doing filing which they could not do because of their back injury. The Worker submits that they have not entered data into a database since 1985.
    7. In light of the information before me, I agree with the Worker’s submission that their employment history almost entirely consists of roles that are physical and manual in nature. A reasonable conclusion is that the Worker only performed small amount administrative work at the pre-injury employer and most of their work experience since 1985 involved interacting and assisting customers by face to face and performing other physical tasks.
    8. In my view, the Worker’s recent work experience does not support that they have been required to perform administrative work to a level required of employment as a customer service officer or work that includes the following duties the employers state that the role requires:
    • efficient and effective carrying out of all administrative duties associated with ward activity and patient management
    • carrying out general reception duties
    • having varied clerical knowledge and experience
    • organising client care and service requirements for specific regions and programs including data entry and utilising various portals to provide timely communication between all stakeholders.
    1. The third employer contacted by the rehabilitation consultant was a Council and the employment description does not state that the role is administrative. In part, it is described as being “sedentary in nature where the majority of duties are completed in the sedentary position.” Given this, together with the descriptions provided by the Government service office employer and the home health care service employer who also employ customer care officers, I consider on balance that the customer care officer role offered by the Council is an administrative role.
    2. Notwithstanding this, the Council advised “that customer service experience and acquiring knowledge on what the council services would be highly regarded however on the job training is provided.” There is no information to support that the Worker has such knowledge.
    3. In assessing whether the role constitutes suitable employment for the Worker, I am required to consider whether they are “currently suited” to it having regard to their education, skills and work experience. It is not assessed having regard to an assumed level of knowledge that the Worker may one day acquire with training in a job and industry that they have never been employed in.
    4. I acknowledge that the injury management consultancy’s closure report, dated XX June 2017, provides that the Worker has received vocational training which may be relevant to the customer service officer role:
      1. The Worker commenced a Workplace Training course in March 2017 for two days a week for 4 weeks. The course focused on training students on how to produce simple word documents, how to create and use spreadsheets and communicate electronically, how to use routine strategies for work related learning, how to use digital technology for simple workplace tasks and how to use Smart phone or tablet in the workplace.

        The Worker enrolled and commenced a Certificate III in Business Administration (Medical) with an adult education institution in April 2017. This is a one day a week course and will be completed in March 2018. The course will provide the Worker with the skills required to work as a Medical Receptionist / Business Administrator.

    5. However, an 8 session course aimed at producing simple documents, technology for simple workplace tasks and an incomplete Certificate III does not, in my view, support that the Worker has the level of skills or work experience to be suited to employment in a predominately administrative role. The Worker is over 50 years of age and they have not worked as a customer service officer or in an administrative role for 32 years.
    6. Again, the labour market research conducted by the rehabilitation consultant reveals that employees are required to have varied clerical knowledge, ensure that services are exceptional and appropriate, and they multitask between phones, emails and scheduling.
    7. The rehabilitation consultant’s opinion provided in the vocational assessment is that “the Worker has the appropriate skills and experience in order to be considered for this role. Considering the Worker’s experience within aged care, the contacts confirmed that this industry experience would be appropriate for customer service roles within community delivery services.”
    8. However, following the vocational assessment, the rehabilitation consultant suggests in a rehabilitation progress report dated June 2017 that the Worker has not been able to secure additional employment “due to limited office management skills.” Reportedly, this is a “vocational barrier.” The rehabilitation consultant recommends that the Worker participate in retraining to “provide them with additional skills required in order to obtain employment as a Medical Receptionist / Business administrator [sic].”
    9. In considering the above and the matters referred to in section 32A of the 1987 Act, I am not satisfied the Worker is currently suited to employment as customer service officer.

    Aged Care Receptionist

    1. The rehabilitation consultant provides the typical duties of an aged care receptionist and again contacted three employers to explore the vocational requirements of the role. She says that receptionists receive and welcome visitors, patients, guests and clients, and respond to enquiries and requests.
    2. At the outset, I will note that I am not satisfied the Worker is currently suited to employment as an aged care receptionist for similar reasons expressed in relation to employment as a customer service officer.
    3. For instance, the retirement community employer advised a Certificate III in Business Administration is “looked upon favourably” because it is “advantageous” to the role. The Worker has not attained a Certificate III in Business Administration. Reportedly, demonstrated experience with administrative duties in a previous role would be considered as competitive in lieu of a qualification. The Worker was last employed in an administrative role in 1985.
    4. The aged care centre employer advised that the role predominately requires the worker to perform a range of reception, administration and clerical work at the front desk of the retirement village. The employer also says proficient keyboard and computer skills are a key skill for the role. The employer also requires employees to have demonstrated verbal and written communication skills. The rehabilitation consultant has experience in communicating with customers and patients and they reportedly displayed appropriate communication skills during the vocational assessment. However, the Worker has not worked in a role that is described as having required “written communication.” Their ability to write and their computer proficiency has not been tested and I agree with the Worker’s submission that they have been unable to demonstrate excellent written communication skills or computer literacy.
    5. The aged care service employer provides that employees in the role undertake front desk customer service, general administrative and clerical duties, record keeping, file management, and adhoc administrative tasks. Again, the Worker has not worked in an administrative role  since 1985 and the rehabilitation consultant recommends that to obtain employment as a receptionist, the Worker should participate in retraining to provide them with additional skills.
    6. I am not satisfied that the Worker is suited to employment as an aged care receptionist having regard to their age, education, skills and work experience.

    Leisure and Lifestyle Officer

    1. The rehabilitation consultant states that employees in the role are responsible for motivating frail, aged residents towards emotional and physical rehabilitation through recreational activities that promote psychological, social and physical wellbeing. The position works collaboratively with the aged care team in providing residents with quality care, actively trying to maintain the skill level, independence and mobility of individual residents while providing respite support to their family/carers.
    2. After contacting several employers in the labour market, the rehabilitation consultant concluded that the Worker would be required to complete a Certificate IV in Leisure and Health in order to be considered as a competitive candidate for leisure and lifestyle officer roles. The rehabilitation consultant recommends that the Worker undertake a 12 month retraining at TAFE and this occupation is a “long term vocational goal.”
    3. Again, suitable employment in relation to the Worker means employment in work for which they are currently suited. The rehabilitation consultant has not completed a Certificate IV in Leisure and Health and for that reason, I am not satisfied they are suited to the role having regard to their education.

    Finding on suitable employment

    1. I acknowledge the Insurer’s submission that on XX October 2016 the treating doctor provided his support for the vocational options. While the Worker may have the functional capacity to return to some type of employment, I am not satisfied that they are able to return to suitable employment having regard to their age, education, skills and work experience.

    Pre-injury employment

    1. The Worker has not referred the Insurer’s decision that they have a present inability arising from an injury such that they are not able to return to work in their pre-injury employment for merit review.
    2. I will proceed accordingly.

    Finding on current work capacity

    1. Given the above, I find the Worker has 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.
    2. I find the Worker has “no current work capacity” as defined by section 32A of the 1987 Act.

    Entitlement to ongoing weekly payments

    1. In the reply to the Worker’s application for merit review, the Insurer submits that the Worker has been in receipt of weekly benefits for 40 weeks as of XX September 2017.
    2. Therefore, the Worker’s entitlement to weekly payments of compensation currently falls in the second entitlement period and is to be determined in accordance with section 37 of the 1987 Act.
    3. The Insurer had decided to calculate the Worker’s weekly payments of compensation under section 37(3) of the 1987 Act on the basis they have current work capacity.
    4. Instead, I recommend that the Worker’s entitlement to weekly payments of compensation is to be determined under section 37(1) of the 1987 Act. This section provides:
      1. (1) 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:

        (a)  (AWE × 80%) − D, or

        (b)  MAX − D,

        whichever is the lesser.

    1. The Insurer is to calculate and pay the Worker’s weekly payments of compensation accordingly.

      Merit Reviewer
      Merit Review Service

      Delegate of the State Insurance Regulatory Authority