Open scrollable table of contents

Print entire document

Merit review WC034/18

Our Reference: 034/18
Date of review: December 2017

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 present inabilities arising from the Worker's injury are such that they have capacity to work for 5 hours per day, 4 days per week in suitable employment.
  3. The roles of receptionist, customer service representative and call centre worker do not constitute suitable employment for the Worker.

Recommendations based on findings

  1. The following recommendation made by the Authority is binding on the Insurer and must be given effect to by the Insurer in accordance with section 44BB(3)(g) of the 1987 Act.
  2. The Insurer is to determine the Worker's entitlement to weekly payments of compensation in accordance with the above findings from September 2017 (the date of the work capacity decision), subject to any notice period.

Background

  1. The Worker sustained injuries whilst working for the pre-injury employer. They have been in receipt of weekly payments of compensation from the Insurer.
  2. In September 2017, the Insurer made a number of work capacity decisions. It determined that the Worker has the ability to work 37 hours per week in suitable employment and that the roles of customer service representative, call centre Worker and receptionist constitute suitable employment. It determined that they have "current work capacity" and ultimately calculated their entitlement to weekly payments of compensation under section 37 of the 1987 Act at nil.
  3. In October 2017, the Insurer conducted an internal review. It essentially made the same decisions.
  4. The Worker's application for merit review was received by the Authority in November 2017. I am satisfied that the application was made within time, pursuant to section 44BB(3)(a) of the  1987 Act. The application has been made in the form approved by the Authority.

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. I have considered all of the information that was provided by the parties in relation to this merit review. I have only referred to the information that is most relevant to my findings in the reasons that are set out below.
  2. I am satisfied the parties have had the opportunity to respond to each other's submissions and that the information provided has been exchanged between the parties.

Submissions and issues in dispute

  1. The Authority confirmed by correspondence dated December 2017 that the work capacity decisions referred by the Worker to the Authority for review are:
    • The Insurer's decision that they have capacity to work 37 hours per week in suitable employment, and
    • The Insurer's decision that the roles of customer service representative, call centre Worker and receptionist constitute suitable employment for them.
  1. The following submissions are made in the application for merit review:
  2. (a) Current work capacity

    • In April 2016, they sustained injury to their right arm and they now also have a secondary injury to their right shoulder.
    • They returned to work on selected duties, initially for 12 hours per week and increasing to 20 per week in October2017.
    • The nominated treating doctor certifies them with capacity to work 5 hours per day, 4 days per week with restrictions.
    • In a report dated November 2017, the nominated treating doctor notes that they have developed pain in their right shoulder and recommends that they be referred to a sports physician/surgeon. Further, that they should "continue with their current restrictions and ideally should reduce their hours to 4 a day".
    • In a report dated September 2017, an orthopaedic specialist recommends that "they avoid aggravating activities and wear a splint and tennis elbow brace, perform postural drills, and rotator cuff strengthening program”. They also recommend ultrasound guided injections that would require 2 days off work after each treatment.

    (b) Suitable employment

    • Their current role is "artificial in that it has been created to allow for their restrictions and is in accordance with the rehabilitation program ...being upgraded insofar as their hours of work and duties are concerned".
    • The roles of customer service representative, call centre worker and receptionist are not employment in work for which they are suited and do not constitute suitable employment for them within the definition of the 1987 Act.
    • The roles require an ability to utilise fine monitor skills for computer work. These are not within their tolerances. It is reported that they can work full time in a job with "limited manual demands on the right hand..."
    • Further, the physical demands of the roles do not conform with the functional tolerances outlined on their Certificates of Capacity. For example, computer work would require repetitive use of the right hand.
    • No rehabilitation program has been put into place for them to undertake a basic computer skills course, computer literacy course or English Language course.
    • Their work experience is not transferable to any of the roles identified. Further, none of the employers said that on the job training would be provided.

    Customer service representative

    Employer contact 1
    • This role is office based and requires reasonable computer skills. They only have "very basic computer skills"; limited to searching the internet. Their skills would not be sufficient to undertake office work.
    • They are limited in use of a computer as they are only able to use their left hand for typing. The functional requirements include "repetitive movements and use of hand-held objects..." Doctors recommend that they not perform repetitive movements with their right hand and arm.
    • They do not have the level of English language skills required to be efficient in this role. English is not their first language. The Insurer relies on them having skills as a primary school teacher back home, however, their schooling overseas was in their native language. Their employment for the last 14 years did not require more than basic English language skills.
    • An ability to write for periods of time is required. They are right hand dominant and not able to write for extensive periods with their injured right hand.
    Employer contact 2
    • This role also requires reasonable computer knowledge and typing. Call centre workers are required to identify customer's computer problems so that can be related to a technician. They also do not have the computer skills or language skills required for this role.
    Employer contact 3
    • The role also requires knowledge of computers and typing. Further, it requires knowledge of mobile phones. They only have basic skills in this regard and they are not sufficient to be able to offer technical support to customers.
    • They also so not have the knowledge or expertise to sell mobile phone packages to customers.
    Receptionist
    • A receptionist at a real estate agency is required to be an "all-rounder". The duties listed by the Insurer in their decision are not inclusive.
    • Receptionists are required to be able to undertake tasks such as word processing, data entry, filing, mail dispatch and photocopying. They are not able to undertake repetitive actions with their right hand. Further, they do not have "word-processing ability".
    • Filing may involve working with items that would exceed 1kg.
    • Work in a receptionist role with a cruise company requires sound English language skills. Further, clerical tasks such as word processing, data entry, filing, mail dispatch and photocopying. They do not have these skills.
    Call Centre Worker
    • They are not suited to work in this role because of their lack of English language skills and computer literacy. Their restrictions would also prevent them from undertaking computer work for any length of time.
    • The job description includes "developing rosters and managing staff numbers to meet work flows". They have no experience, knowledge or skills to undertake these tasks. They also have no knowledge of how to operate databases.
    • The functional requirements of the job include "use of hand held objects, will also need to operate printers, copies and a range of other office equipment..." This indicates that work is of a repetitive nature and not suitable given the restrictions their treating doctors and the injury management consultant have recommended.
    • Employers require sound English language skills and an ability to use a computer.
  1. In reply, the Insurer submits:
    • The Worker is currently certified with capacity to work for 20 hours per week lifting up to 1kg.
    • It has obtained an independent medical report and supplementary report from an independent medical consultant that supports that the Worker can perform full hours.
    • Recent surveillance footage has been obtained which conflicts with the Worker's reported level of function. This will be provided to the nominated treating doctor for review and consideration. The independent medical consultant confirms that this footage supports the Worker's ability to undertake full hours of work in suitable employment.
    • In October 2017, treating physiotherapist provided recommendations to the nominated treating doctor that the Worker could lift 2 kg, pull 2 kg and push 3 kg and in July 2017 that they could increase to full time hours with these restrictions.
    • There are conflicting medical opinions in respect of the Worker's capacity for suitable employment. The Worker's treating physiotherapist, who reviews them frequently, along with the two independent medical consultants, supports that the Worker has the ability to work full time.
    • The Worker's current restrictions of "lifting 1kg with right hand, no repetitive lifting, allow change of position, avoid heavy objects and avoid repetitive movement" have been taken into consideration in the vocational assessment report dated July 2017.Further, the Worker's nominated treating doctor approved of the identified roles as being suitable employment options in September 2017.
    • The Worker has completed Certificate Ill through TAFE since moving to Australia in 2000. This reflects that they have a greater than basic ability to understand and communicate in English as claimed in their submissions. They were also able to communicate throughout the vocational assessment in a "clear and concise manner".
    • As the Worker continued to report a lack of confidence in English, it provided approval for them to attend an English course in October 2017. However, the Worker discontinued this, advising that it was too stressful to attend as they had to travel for 1 hour and 20 minutes to the course and that they did not see the point of it.
    • The occupational rehabilitation provider has sourced multiple opportunities for the Worker to engage in work trials. They advised that the Worker is "self-sabotaging these opportunities and lacks engagement in job seeking activities". In November 2017, they recommended that job seeking assistance be finalised.
    • The main barrier to the Worker obtaining employment is their engagement with return to work and vocational assistance.

Nature of merit review

  1. This matter involves a merit review of the work capacity decision of the Insurer in accordance with section 44BB(l}(b} of the 1987 Act.
  2. The review is not a review of the Insurer's procedures in making the work capacity decision and/or internal review decision. 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.

Reasons

  1. The Worker sustained injuries after they slipped and fell whilst at work.
  2. In March 2017, the hand surgeon performed surgery to repair the damage.
  3. A report from the orthopaedic surgeon dated November 2017 indicates that the Worker was in a cast for approximately six weeks following their surgery and then underwent hand therapy. Their recovery was slow and complicated by chronic pain syndrome as they continued to experience pain. In respect of the Worker’s shoulder, the orthopaedic surgeon indicates that they suffer from rotator cuff tendinopathy, lateral epicondylitis and subacromial bursitis.
  4. An independent medical examiner (IME) saw the Worker in July 2017 and produced a report of the same date. They note that at that time, the Worker was working 4 hours per day, 3 days per week and that they had some problems with certain tasks which required use of their right hand. The report notes that "they are very reliant on their left hand, only using the right hand as a support" and reliant on pain medication and "is developing a range of secondary symptoms due to anomalous usage".
  5. The IME states that the Worker's current certificate of capacity is a reasonable reflection of their capacity to work in their current duties. They recommend that the Worker could work full time in a job with "limited manual demands on the right hand. At the present time, they are really only using the four fingers of the right hand and is doing most activities left handed. For example, they  would be able to undertake "a looking/talking job fulltime."
  6. The IME reports that they discussed the matter with the nominated treating doctor (NTD) and the rehabilitation consultant, neither of whom were optimistic about a return to full pre-injury duties. They note that the NTD was "happy to progress return to work as detailed ..."
  7. The Worker's treating physiotherapist provides reports dated July and October 2017. These reports indicate that the Worker's progress with therapy was slow due to ongoing high levels of pain.
  8. In the earlier report, the treating physiotherapist opines that the Worker could increase their hours of work to full time "on the current restricted duties they have been assigned". They note the Worker’s current ability on the right as lifting and pulling - 2kg and pushing 3 kg.
  9. In the more recent report, the treating physiotherapist reports that the Worker's range of motion had remained stagnant despite ongoing therapy. Further, that they had started complaining of the pain worsening.
  10. The treating physiotherapist recommends that due to the Worker’s high levels of pain, it may be beneficial for them to be referred to a pain management specialist. They do not comment specifically in this report on the Worker’s capacity in respect of hours of work but does note "current ability on the right side remains unchanged due to their pain".
  11. The sports physician reports in September 2017, after examining the Worker, that they:

"... have pain with overhead activity, lifting, repetitive use of the arm, has some difficulty to lie on to the shoulder at night, but still has no distal paraesthesia. I note the recent review with the orthopaedic surgeon and that they have not recommended further surgery.

MRI right shoulder shows articular sided supraspinatus tendinosis and partial thickness tears and small subscapularis insertional tear."

  1. The sports physician recommends that the Worker "avoid aggravating activities and wear the thumb split and tennis elbow brace, perform postural drills, and pain free ½ kg free weight rotator cuff strengthening program".
  2. In a report dated November 2017, the orthopaedic surgeon reports that the Worker had increased their working hours to 5 hours per day one month ago and since that time, their pain had increased and that the Worker had developed pain in their right shoulder which was waking them at night.
  3. The orthopaedic surgeon recommends referral to a pain specialist and sports physician/surgeon regarding the right shoulder. They state the Worker "should continue with their current restrictions and ideally, should reduce their hours to four a day". They also recommended that the Worker work 4 hours per day, 4 days per week in a previous report dated September 2017.
  4. In a report dated November 2017, in answer to a question asked by the Insurer, the injury management consultant (IMC) opines that the Worker is capable of working in the roles of customer service representative, call centre Worker and receptionist. They state:

"in view of their prolonged absence from the workforce, their ongoing symptoms and chronic pain condition, I would recommend returning them on reduced hours for example, five hours a day, five days a week and then increasing these hours in a graduated fashion as tolerated."

  1. The IMC indicates that a return to pre-injury hours should be achievable 6-8 weeks after commencing work. They recommend that the Worker should have the opportunity to alternate tasks where possible and take regular rest breaks.
  2. After reviewing surveillance evidence provided by the Insurer, they provided a supplementary report dated December 2017 and states

"... I would conclude that the Worker does have the capacity for work in the roles identified by the vocational assessment ...in full time capacity.

Although the Worker remains symptomatic in relation to their right upper limb, I believe they do have the physical capacity to work within the identified occupations."

  1. In the most recent certificate of capacity before me, dated November 2017, NTD, certifies the Worker with capacity to work for 5 hours per day, 4 days per week with the following physical capabilities:
    • Lifting/carrying - 1kg with right hand and no repetitive lifting,
    • Siting/standing tolerance - allow change of posture,
    • Pushing/pulling ability - avoid heavy objects,
    • Bending/twisting/squatting - "avoid repetitive movements", and
    • Driving ability - not permitted.
  2. In the certificate dated September 2017, NTD certifies the Worker with the same capacity. Prior to that, they have been certified with capacity to work for 4 hours per day, 4 days per week with the same physical capabilities.
  3. The medical information before me concisely indicates that the Worker continues to suffer from pain in their hand and wrist which extends into their right forearm, elbow and more recently, their shoulder. Further, that their recovery progress has been slow due to such ongoing pain.
  4. However, there is a divergence of medical opinion as to the Worker's current capacity for work.
  5. The IMC, after recently reviewing surveillance information, and Worker’s treating physiotherapist indicate that they have capacity for full-time work. The IME indicates that the Worker has capacity to continue working restricted hours (12 hours at the time) in their current role but that they could work full time in a job with limited manual demands on the right hand. On the other hand, NTD and the orthopaedic surgeon recommend that they only have capacity to work restricted hours.
  6. I prefer the consistent opinions of the NTD and treating orthopaedic surgeon. As these doctors are the Worker's NTD and the treating orthopaedic surgeon respectively, I give their opinions particular weight. Both doctors have recently reviewed the Worker, in particular after the development of the Worker’s recent shoulder concerns and have been involved in their treatment in this regard. I consider the opinions of each of these treating doctors is strengthened as it is consistent with the other, save that the treating orthopaedic surgeon recently recommended that as a result of the Worker’s recent increasing pain, the Worker should consider reducing their hours of work from 5 hours per day, back down to 4 per day.
  7. Whilst I acknowledge that the treating physiotherapist recommends different physical capacities to those recommended by NTD, I again prefer the opinion of the NTD as the treating orthopaedic surgeon also expressed agreement with these stating in their recent report that the Worker "should continue with their current restrictions".
  8. I find that the present inabilities arising from the Worker's injury are such that they have capacity to work for 5 hours per day, 4 days per week in "suitable employment", with the physical capabilities as recommended by the NTD in the certificate of capacity dated November 2017.

Suitable employment

  1. Suitable employment" is defined in section 32A of the 1987 Act as:

    (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 448}, and

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


    (iii) any plan or document pre pared 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 WorkCover 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 theemployment market, and

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

    (iv) the worker's place  of residence.

  2. The Worker completed high school and then a Bachelor of Arts degree in their homeland. After moving to Australia in 2000, they completed a Certificate Ill in Aged Care at TAFE in 2005 and a Certificate Ill in Hospitality in 2012.
  3. Since moving to Australia, they have worked in their pre-injury role since 2002. A full list of duties involved in this role is provided in the vocational assessment report which was prepared by the rehabilitation consultant on behalf of the occupation rehabilitation provider in July 2017.
  4. The rehabilitation consultant states that the Worker advised that English is their second language and that they self-rated their English Language skills as "average". It is reported that "this was observed throughout the assessment as the Worker successfully understood all questions in English and reported in a clear, concise manner".
  5. The level of the Worker's English language skills is a point of dispute between the parties. Whilst the Worker asserts that they have only basic English skills, the Insurer submits that their ability to complete the above-mentioned TAFE courses "reflects that they have a greater than basic ability to understand and communicate in English as claimed".
  6. The Insurer indicates that it provided approval for the Worker to attend an English course to increase their skills in this regard, however, they did not complete the course. An email from the rehabilitation consultant in October 2017 indicates that such a course was approved. They note "the employment consultant" indicated that the Worker's English literacy "was very basic for the open labour market in an English country". I consider that this comment generally supports the Worker's submission in this respect.
  7. It is reported that the Worker rated their computer skills as "basic" (0/10), not having previously used Microsoft Excel or Power Point. However, at a "beginner" level (2/10) for Microsoft Word and Explorer as they had used these programs. Further, that they had no difficulties using email or a smart phone.
  8. The roles of customer service representative, call centre worker and receptionist are canvassed in the report. The rehabilitation consultant concludes that the first two are suitable employment. In respect of the role of receptionist, they state that "as demonstrated in the labour market analysis, [this role], is deemed a suitable return to work option for the Worker, however an upgrade in hours of capacity to full time is required" (all three employers contacted in respect of this role indicated that hours were full time).
  9. In light of the above and my finding that the Worker currently only has capacity to work for 5 hours per day, 4 days per week, I am not satisfied that this role is work for which the Worker is currently suited when considering the nature of their incapacity. The Worker’s restrictions in respect of hours of work are as much a part of their incapacities arising from the injury as are their physical restrictions. Therefore, I am not satisfied that the role of receptionist constitutes suitable employment for them.
  10. I will therefore turn to consider the suitability of each of the remaining roles in further detail pursuant to the factors set out in section 32A of the 1987 Act.
Customer Service Representative
  1. The rehabilitation consultant reports that the duties of a customer service representative include promoting and selling a company's goods and services, providing direct service to customers in respect of purchases and after sale needs. Customer service representatives may also follow up to ensure client satisfaction with goods, resolve problems, maintain records and perform receptionist duties.
  2. Information obtained from employer contacts supports that communication skills, customer service skills, computer skills and sale skills may be required in the role.
  3. The Worker has no previous experience working in a customer service role. The rehabilitation consultant concludes that the Worker has transferable customer skills from working in their pre-injury role and from working as a primary school teacher prior to migrating to Australia. However, there is no indication in the list of duties that indicates that customer service duties were a significant part of their pre-injury role. To the contrary, other than delivering items to customers, it appears that they had little contact with them.
  4. I do not consider that their skills from this role would be similar to the level of customer service skills required of this role, performing duties such as selling a company's goods and services and ensuring customer satisfaction.
  5. While the Worker has experience working as a primary school teacher and this involved engaging with students and liaising with other staff and parents of students, this was almost 20 years ago.
  6. Further, as noted above, I consider that the information before me tends to support that the Worker has only basic English language skills. I am therefore also doubtful that they would possess the level of communication skills required of the role.
  7. Finally, there is no indication on the information before me that the Worker has any experience working in a sales role or that they have skills in this area from any other role. The employment history provided in the vocational assessment report indicates that their employment history is limited to the two above mentioned roles and there is no indication that either involved sales.
  8. I acknowledge the Insurer's submissions that the Worker's main barrier to them obtaining employment is their engagement with return to work and vocational assistance. There is some information before me to support that the occupational rehabilitation provider has sought to set up work trials and approved courses for the Worker and it should be commended in this regard. However, whilst this information is relevant for me to consider,
  9. I am nonetheless also required to consider whether the role is "suitable employment" taking into account the Worker's current skills and work experience.I am not satisfied based on the information before me that this role is work for which the Worker is currently suited when considering their skills and work experience. I am therefore not satisfied that this role constitutes suitable employment for them.
Call Centre Worker
  1. A full list of duties that may be involved in this role is provided in the vocational assessment report. Information obtained from employer contacts supports that answering or making calls, assisting customers and, in some cases, sales duties are involved in the role.
  2. The Worker does not have any previous experience working in a call centre role. As noted above, I consider that they have limited recent customer service experience and no experience working in sales.
  3. Their employment history since they moved to Australia in 2000 is limited to their pre-injury role. There is no indication in the list of duties provided in the vocational assessment report that this involved customer service duties of the nature likely to be required in this role or sales duties.
  4. Further, as noted above, I consider that the information before me indicates that the Worker has only basic English language skills. I am not satisfied that their skills are at a level suited to a role which appears to primarily involve talking to customers over the phone.
  5. I am not satisfied based on the information before me that this role is work for which the Worker is currently suited when considering their skills and work experience. I am therefore not satisfied that this role constitutes suitable employment for them.

Conclusion on suitable employment

  1. I find that the roles of receptionist, customer service representative and call centre Worker do not constitute suitable employment for the Worker.