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Merit review WC037/18

Our Reference: WC037/18
Date of decision: June 2018

Findings on review

1. The Insurer’s decision to reduce the amount of the Worker’s weekly payments of compensation  to $0.00 stands.

Recommendations

2. The Authority may make binding recommendations to the Insurer based on the findings of this review. However, no recommendations are made for the reasons below.

Background

3. The pre-injury employer employed the Worker as an assistant nurse. They injured their back at work and the Insurer accepted liability for weekly payments of compensation.

4. In February 2016, the Insurer decided to reduce the amount of the Worker’s weekly payments of compensation to $0.00 on the basis that, among other things:

  • The Worker had current work capacity.
  • The Worker was able to earn $1,193.96 a week in suitable employment.

5. In March 2016, the Worker applied for an internal review of the work capacity decision. In April 2016, the Insurer affirmed its decision to reduce the amount of the Worker’s weekly payments of compensation to $0.00.

6. In June 2016, the Worker made an application for merit review by the Authority. The Authority decided to reject the application on the basis that it was not made within the statutory time limit.

7. On XXXX, the Court of Appeal ordered that the Authority’s decision be set aside. The Court remitted the application back to the Authority to determine according to law:XXXXX

8. The Worker has now provided signed statements and other documents to support that the application was made in time. The Insurer concedes that the application was made in time. It submits that the Authority is able to conduct a merit review. I accept that the application met the relevant statutory requirements and I will conduct a merit review of the work capacity decision.

Legislation

9. The legislative framework governing work capacity decisions and reviews is contained in the:

10. 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

11. I have considered the application for merit review and the Insurer’s reply form, the documents listed in and attached to those forms, and all further information that the Worker and the Insurer have exchanged and provided to the Authority.

12. I note that the Authority requested further information from the Worker in May 2018. The Worker provided an initial response in May 2018 and a further response in June 2018 following an extension of time. This information was exchanged with the insured and I have considered it.

Submissions

13.  I have read and considered the Worker’s submissions and the Insurer’s submissions. I have addressed the issues raised by the submissions in the reasons below.

Reasons

Nature of merit review

14. This is a merit review of the Insurer’s decision to reduce the amount of the Worker’s weekly payments of compensation to $0.00. I must consider the matter afresh based on the information now before me and make findings that are correct in law and most preferable on the merits.

Current work capacity

15. The Insurer’s decision to reduce the amount of weekly payments of compensation was based on a decision that the Worker had current work capacity. The Worker says the Insurer was wrong to reduce their payments because it should have decided ‘that I currently have no work capacity’.

16. Section 32A of the 1987 Act defines ‘current work capacity’ and ‘no current work capacity’:

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

17. The Insurer accepted that the Worker was not able to return to their pre-injury employment. That is not in dispute. The dispute is about the Insurer’s decision that the Worker was able to return to work in suitable employment full-time. In my view, the decision should have been that the Worker was able to return to work in suitable employment part-time.

18. It is useful to summarise the key information on this issue.

19. The Worker says that ‘I am suffering from pain, discomfort and restriction of movement in my lower back, radiating pain down my legs, distress and depression because of my pain and the impact it has on my work and life’. They also say that they have ‘discomfort in my right shoulder’ from a gym incident related to their compensation claim. They say that ‘Up until February 2016 my employer found for me a suitable job in an assistant in a nursing role working 24 hours on average per week taking breaks when needed’. They say that in March they were moved into an ‘office based position, in which I was required to file documents in archiving’. They found the work ‘very stressful on [my] back, increasing my shoulder and back pain to levels in which I could not cope’. They say that ‘I have a constant limp on my left because of the pain’. They also say that ‘I get swelling and muscle spasm when I do more than 24 hours per week in the office work or Assistant Nurse duties’. They say ‘Ever [sic, even] sitting down for prolonged periods of time worsens my symptoms to the point in which I need to get up and move around’.

20. Radiologist. They made a lumbar spine x-ray report in February 2014. They said that if the Worker has ‘radicular or discogenic type pain, then further assessment by MRI is recommended’. They made a lumbar spine MRI report in October 2014. They found evidence of disc protrusions and nerve impingement in the lower spine. Thy made a cervical spine MRI report in December 2014. They saw ‘No definitive neural impingement at any level. No central canal stenosis’.

21. Sports physician. They saw the Worker several times in early 2014. They made a report in May 2014. They said:

The Worker is doing light duties but this involves making and stripping beds which is inappropriate. The repetitive bending and stooping would be deleterious to them and they need to be given different duties. On the other hand, they need to increase their level of activity and the fact that they increased their work days to 4 instead of 3 in their view prevented them from doing more exercise. I have pointed out that this is not the case as they also need to become work fit.

22. They made another report in July 2014. They said the Worker ‘has made definite improvement and is trying to increase their exercise levels…Clinically they move well and  it was a  matter of encouraging them to continue pushing themselves to increase their function’.

23. Radiologist. They made a lumbar spine MRI report in May 2015. They saw ‘degenerative disc and bony disease at all levels of the lumbar spine’ which caused ‘narrowing of the spinal canal particularly pronounced at L4/5 and L5/S1.

24. Neurologist. They saw the Worker and made a report in October 2014. They said that the Worker was ‘now doing four days a week eight hours a day of light duties limited to supervising patients and not lifting more than 6 kilos’. They reviewed the MRI results and saw disc protrusions and nerve impingement. They said that ‘unless we can achieve some degree of relief I think that the Worker should be considered for surgery’.

25. They made a handwritten report in January 2015: ‘I have informed [The Worker] that they are unfit for work involving lifting and manual activity pending further investigation and treatment’.

26. They made a report in February 2015. They said that the Worker’s ‘sciatica has become more severe and persistent in recent weeks. The Worker is now experiencing bilateral sciatica, left more than right. Early in the day they can walk for 15–20 minutes, however later in the day they are restricted to short distances. Their pain is present with exercise and at times persists with rest’. They referred the Worker for neurosurgical review.

27. Neurosurgeon. They saw the Worker in February 2015. They made a report in February 2015. They said ‘Since last year, the Worker continues to struggle with ongoing pain, particularly when exerting themselves. When they are more rested, their symptoms are much more manageable’. They also said ‘The Worker’s walking capacity is limited by pain. They do get relief when they stop and rest for a very short period of time’. They recommended a non-surgical approach and noted that the Worker ‘was prepared to be less active and not continue to work as long as they previously did because of the ongoing pain’.

28. Neurosurgeon. They examined the Worker for the Insurer in June 2015. They made a report in June 2015. They said that the Worker’s ‘neurological symptoms have significantly improved. Therefore they do not require surgery at this stage’. They also said ‘I do not believe it would be appropriate to force the Worker to do normal hours of pre-injury duties. They are not fit for their pre-injury duties. In my opinion perhaps the Worker is fit for 3–4 days work a week for 4 hours a day, gradually increasing their hours depending on their capacity. In my opinion it is inappropriate to force the Worker to do their normal hours of work as they are not yet ready for this’.

29. They made a supplementary report in August 2015. They reviewed a vocational assessment report dated August 2015 given to them by the Insurer. They said:

I agree with the vocational options of customer service officer, general clerk and administrative assistance [sic, assistant] are suitable options for the Worker and they are in line with their current restrictions.

The jobs identified in the vocational assessment do not involve lifting heavy objects and I therefore believe they would be safe options for the Worker.

30. Neurosurgeon. They saw the Worker and made a report in July 2015. They said:

It is consistent with the Worker’s disc herniations demonstrated on their MRI scans that they will be unfit for manual work, work involving sustained standing or walking, or work involving lifting or handling patients. They may be able to do part-time sedentary work with ability to change posture and have rest breaks. They are unlikely to improve on this work capacity for the foreseeable future.Symptoms have been going on since February 2014. Therefore, it is not possible to advise that symptoms will improve in the foreseeable future over the next year or two.…Surgical treatment should improve their work capacity and quality of life and function. It is not possibleto guarantee that it will enable them to return to pre-injury duties.

31. They saw the Worker again in November 2015. They said that the Worker was ‘too anxious’ about the risks of surgery to go ahead with it. They advised the Worker to ‘continue with work restrictions and symptomatic treatments and counselling about their condition and trying to address psychosocial risk factors’.

32. General practitioner. They issued a certificate of capacity in December 2014. They certified that the Worker had a ‘back injury’ with capacity to work five hours a day, four days a week. They put several restrictions on the Worker’s function, including not lifting more than 6kg, no pushing/pulling and no repetitive bending or stooping.

33. The GP issued many further certificates for the Worker. Those certificates generally supported that the Worker had capacity for part-time employment of low physical demand. But, there were times when the Worker was certified as having no work capacity.

34. In January 2016, closer to the date of the work capacity decision, they certified that the Worker had ‘Back injury, Depression’ and that they were able to work six hours a day, four days a week with capacity as follows:

  • Lifting/carrying                                        4kg
  • Standing tolerance                                 30 minutes
  • Pushing/pulling                                       up to 5kg
  • Bending/twisting/squatting                     avoid bending and twisting as much as possible
  • Other                                                      morning shifts only

  • The only two further certificates of capacity before me are dated February 2016 and April 2016. They are in the same terms as above.
  • The Worker says that the GP has advised them to do morning shifts only ‘so that I do not over exert myself with working too many hours’. I accept that explanation. No specialist doctor recommended that the Worker’s work capacity was restricted in such a specific way. Rather, the consistent thread of specialist opinion supported that the Worker should not over-exert themselves and is only able to work part-time. I therefore understand ‘morning shifts only’ to be a general caution against the Worker over-exerting themselves. I do not accept that the Worker is restricted to working at specific times of the day. The weight of information does not support that view.
  • GP’s other recommendations on the Worker’s work capacity in the certificates of capacity are, in my view, consistent with the opinions of the specialist doctors.
  • GP responded to a facsimile from the Insurer in February 2016. The Insurer asked: ‘do you think the Worker’s Suitable Duties and hours are suited to their needs?’. GP wrote ‘Yes’. The Insurer also asked: ‘If the pre-injury employer were to offer more sedentary duties that would be less taxing on the Worker, in an office situation for example, in your opinion do you think their hours of work could be increased to “normal hours”?’. GP wrote ‘Yes’.
  • The Worker has provided a more recent report from the GP dated May 2018. GP confirmed that the Worker ‘was able to do the following jobs on part time basis only’: welfare Worker, customer service officer, and general clerk/administrative assistant.
  • Another general practitioner who treated the Worker earlier on and issued certificates of capacity in 2015. Generally, they assessed that the Worker had a greater work capacity than what the current GP assessed.
  • Doctor of the occupational rehabilitation provider made a ‘file review’ report in August 2015. The Insurer gave the doctor a selection of reports, which they list in the report. They stated that ‘It is through the reading of these reports that they have come to their conclusions’. They stated that:
  • Whilst it is possible that the Worker may have had some minor depressive symptoms related to their WorkCover dispute, there is no indication that such emotional symptoms would be contributing to their absence from work. They may indeed be suffering from a mild depressive condition but on the basis of what I have been told by the general practitioner and on the basis of my reading of the file, I cannot be certain about this. They would need a physical assessment by an independent psychiatrist in order to confirm or deny their allegation and the treating general practitioner’s opinion that they are indeed suffering from a mild depressive illness related to employment or more specifically according to the treating general practitioner, in relation to their problems dealing with their WorkCover claim.

  • Exercise physiologist. They assessed the Worker for the Insurer and made a report in May 2015. They found that the Worker had several functional limitations. They recommended that sitting and standing postures could be maintained ‘given frequent breaks over an eight hour day’. Walking on even terrain ‘can be performed under limitations and are not to be frequently attempted’. They did not recommend stair climbing, squatting, stooping and crawling postural tasks because they ‘could not be safely performed at the time of the assessment’. They assessed that the Worker could lift: 10.4kg floor to waist, 8.5kg waist to shoulder, 12.9kg waist to waist. They could carry 11.4kg at waist height using both hands, 9.6kg using the right hand and 10.6kg using the left hand. They could push and pull 20–85kg using a trolley.
  • Exercise physiologist. They oversaw a work conditioning program for the Worker. They made a report in May 2015. They said that on final outcome that the Worker ‘safely demonstrates’ capacity to work a ‘trial of full hours’ (40 hours a week), lift and carry up to 12kg and push and pull up to 10kg.
  • Physiotherapist. They assessed the Worker’s physical function in December 2015. They said that the Worker was capable of doing ‘sedentary and some aspects of full-time work immediately’. They were capable of ‘light lifting in all planes of movement’. They needed ‘the ability to change their posture as required and should minimise repetitive bending, squatting and twisting’. The terms ‘sedentary work’ and ‘light work’ were defined in the report.
  • I put significant weight on GP’s certificates of capacity from January 2016. They were contemporary assessments of the Worker’s work capacity at the time of the work capacity decision. GP had considered the Worker’s back injury and consequential depression. They assessed that the Worker could work six hours a day, four days a week with restrictions. That is consistent with the Worker’s demonstrated capacity for work after their injury. The Worker says that ‘Up until February 2016 my employer found for me a suitable job in an assistant in a nursing role working 24 hours on average per week taking breaks when needed’. It is also closely consistent with neurosurgeon’s opinion that the Worker will be unfit for ‘manual work…’ but ‘may be able to do part-time sedentary work with ability to change posture and have rest breaks’. Neurologist and the other neurosurgeon did not give definitive opinions on the Worker’s work capacity but their comments on the Worker’s function are broadly in line with GP’s recommendations. GP’s recent report in May 2018 is consistent with the opinion expressed in the certificates of capacity from January 2016.
  • Neurosurgeon had assessed that the Worker should start work on three to four hours a week, four days a week. However, they considered that the Worker could be ‘gradually increasing their hours depending on their capacity’. Neurosurgeon’s supplementary report also supported that the Worker could work in sedentary type work that did not involve heavy lifting. Their comments were made around six months before the certificate of capacity in January 2016. In my view, the certificates of capacity are not inconsistent with neurosurgeon’s opinion about the Worker’s work capacity, particularly given their indication that the Worker’s work capacity could improve.
  • Both of the exercise physiologist as well as the physiotherapist, all assessed that the Worker was able to work full-time. However, their opinions differed on the Worker’s other functional abilities. None of the qualified doctors gave an opinion that the Worker could generally work full-time.
  • The Insurer decided that the Worker was able to work full-time because of the functional assessments and GP’s response to its facsimile in February 2016. In my view, the Insurer put too much weight on the functional assessments over the opinions of qualified doctors. Also, GP’s response in February 2016 addressed a very specific question about suitable duties put to them. I do not consider that it was correct and preferable for the Insurer to extrapolate too far on that response to decide the Worker’s ability to return to work more generally.
  • I consider that at the time of the work capacity decision the Worker had a present inability arising from an injury such that they were able to return to work for six hours a day, four days a week with: lifting/carrying capacity of 4kg, standing tolerance of 30 minutes, pushing/pulling ability of 5kg and to avoid bending and twisting as much as possible.
  • Pre-injury employment

    1. The Worker was employed as an assistant nurse. It involved physically demanding work. Neurosurgeon stated the Worker will be ‘unfit for manual work’ and ‘work involving lifting or handling patients’. GP did not certify that the Worker was fit for pre-injury duties. The other neurosurgeon stated that it was not a ‘good idea’ for the Worker to continue as an assistant nurse due to their disc injury. I consider that the Insurer was correct to find that the Worker had a present inability arising from an injury such that they were not able to return to their pre-injury employment.

    Suitable employment

    1. 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:
    2. Suitable employment, in relation to a worker, means employment 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 Worker says ‘I believe that there is no suitable work available in my circumstances’. They say that ‘whilst I may have a physical capacity to perform tasks, that capacity does not necessarily translate into a work capacity in “suitable employment”, let alone in a full time work capacity’.
    2. The Worker returned to work with their pre-injury employer on ‘suitable duties’ for a period. Workplace rehabilitation provider prepared a return to work plan in December 2014. The plan stated that ‘Where an offer of suitable duties is made, these are of a temporary nature and are designed to assist the Worker to return to pre-injury duties and hours. These duties are available for a limited period and must be reviewed by the end date of the plan’. The plan listed a set of duties which were described as ‘aspects of their pre-injury duties’. A further return to work plan dated August 2015 stated that ‘Suitable duties does not constitute an offer of a new or permanently altered position’.
    3. The Worker’s ‘suitable duties’ were not suitable employment. They were employed as an assistant nurse. That did not change. All that changed was that the duties were temporarily modified to help them stay in work with a view to returning to pre-injury duties. It did not constitute a real job distinct from their pre-injury employment.
    4. The Worker says that ‘In March, before my termination, my employer moved me into a [sic] office based position, in which I was required to file documents in archiving’. They found this work ‘very stressful on my back’. There is not much information before me about this work. However, it appears to be another example of a set of suitable duties rather than a real job. In any event, the particular tasks of this work do not appear to have been physically suitable for the Worker.
    5. The Insurer retained the occupational rehabilitation provider to assess the Worker’s other employment options. In August 2015, a psychologist for the occupational rehabilitation provider, prepared a vocational assessment report document as part of the return to work planning process. The psychologist assessed that welfare worker – case worker, customer service officer and general clerk/administrative assistant were suitable employment options.
    6. The report listed the typical tasks for each type of employment. On its face, the duties do not appear to be physically demanding. They appear unlikely to contravene the Worker’s lifting, carrying, pushing, pulling, bending, twisting and squatting, and standing restrictions recommended in the medical information.
    7. GP’s opinion and neurosurgeon’s opinion fortifies that view. In August 2015, the Insurer sent GP a copy of the vocational assessment report and asked them if they approved these job options for the Worker. GP replied in August 2015 that they approved all three job options. The Insurer also gave a copy of the vocational assessment report to neurosurgeon who made a supplementary report in August 2015. They said ‘I agree with the vocational options of customer service officer, general clerk and administrative assistance [sic] are suitable options for the Worker and they are in line with their current restrictions’. They further said ‘The jobs identified in the vocational assessment do not involve lifting heavy objects and I therefore believe they would be safe options for the Worker’. In May 2018, GP confirmed that the Worker could do these jobs on a part-time basis.
    8. The Worker had capacity for part-time employment up to six hours a day, four days a week. That is a significant capacity for work. Each of the employment options are well-established, recognised occupations confirmed by the fact that each has an Australia and New Zealand Standard Classification of Occupations (ANZSCO) code. I infer that in such occupations part-time employment for up to six hours a day, four days a week is potentially available. Nevertheless, it is important to note that ‘suitable employment’ must be determined regardless of whether the work or the employment is available.
    9. In my view, the weight of information supports that at the time of the work capacity decision these employment options constituted employment in work for which the Worker was then currently suited having regard to the nature of their incapacity and the details provided in medical information including, but not limited to, the certificates of capacity supplied by the Worker.
    10. The Worker was age 36 at the time of the work capacity decision and is now 38. They are well- educated. The Worker completed Year 12 equivalent level of High School. After this, the Worker says ‘I completed undergraduate in Humanities’. Indeed, they have provided their academic results to show that they completed an overseas university course in Humanities and Social Sciences in 2007. They say ‘In Australia I completed my Certificate III in Aged Care in 2008’ and ‘Between 2011 – 2013 I studied and completed my Certificate III as a Dental Nurse’. They have also completed an English course in Australia through Centrelink.
    11. On skills, the Worker says in their application for merit review that they have ‘some difficulties in speaking and writing English’. Although, they later say in the same application that they completed an English speaking course through Centrelink and have a ‘fairly good grasp of communication’.
    12. In May 2017, the Worker’s lawyer submitted that while the Worker has ‘no significant difficulty’ with reading and writing in English, their proficiency is not suitable for the identified employment options and the duties required by such employment. Further, referring to the Worker’s overseas education, they say that ‘our client submits that the marks in these qualifications make plain our client’s difficulties in the studies of English and securing suitable employment’. However, in my view, the academic results show that the Worker’s English language skills have progressively improved. The ‘School Leaving Certificate Examination’ in 1996 shows that the Worker failed ‘Comp. English’. However, the ‘School Certificate Leaving Examination’ in 1997 shows that they resat and passed that subject. They then passed ‘Comp. English I’ and ‘Comp. English II’ at university. They then went on to complete further vocational education in Australia and obtain work in an open competitive employment market.
    13. Further, the Worker has provided a copy of their letter of appointment to United Mission and two certificates they completed while working for that organisation. Those documents are written in English using sophisticated language. I infer that the Worker had to demonstrate a reasonably sophisticated level of skill in English to engage in such work and obtain training certificates which covered areas such as ‘Communication skills’ and ‘Group facilitation skills’.
    14. Also, psychologist said in their report that ‘The Worker reports a good level of English language skills and noted no significant difficulty with their reading, writing and conversing ability’. They ultimately assessed that the Worker was suited to such employment.
    15. I acknowledge that the Worker may have ‘some difficulties’ with the English language. However, the weight of information (including their ability to further their education and employment overseas and in Australia) supports that their English language skills are suitable for employment in the jobs identified by the psychologist.
    16. The Worker says that they have ‘no training, office experience, computer skills, or the like and will need some form of training to undertake such work’. They further state ‘For example, the Welfare position, I have no experience at all in that area and I don’t know what I would be doing’.
    17. On work experience, the Worker says ‘Before the pre-injury employer I worked for a community awareness program as a community facilitator for 7 years’. In May 2018, the Worker provided a ‘letter of experience’ for this work at United Mission. It stated that ‘The underlying philosophy and working approach of the project is community capacity development for the management of local resources through social mobilisation, technical/organisational development training and resource information’. The Worker was responsible for, among other things, building rapport and relationship with communities, community group formation and strengthening, and report writing of the accomplished activities. After coming to Australia, the Worker worked as a dental assistant for one year ‘on a casual basis while working’. They worked six years as an assistant nurse with that employer, which involved the general care of residents and some clerical duties to maintain reports and records of residents.
    18. I do not accept that the Worker lacks the training, office experience, computer skills, or the like for the identified employment options. The Worker worked overseas as a community facilitator for seven years in work that involved some clerical tasks such as report writing. In Australia, they have worked as a dental assistant and assistant nurse. As the psychologist puts it, the Worker’s work experience has provided the Worker with skills for ‘determining the needs of individual and implementing strategies to address those needs’ as well as ‘determining customer requirements’ and ‘completing basic reporting tasks’. More generally, the psychologist says that the Worker’s experience has equipped the Worker with ‘good computer skills, interpersonal skills, communication skills, data entry skills, telephone manner skills and reporting experience’. I consider that is likely to be the case given the Worker’s age, education and work experience. The Worker is a young individual who lives in a society in which computer technology is a ubiquitous feature of life. They have completed tertiary level qualifications within the last 10 years. In my view, the Worker’s age, education and work experience is inconsistent with their submission that they have no training, experience or skills for the employment identified by the psychologist.
    19. The psychologist assessed that the Worker’s age, education, skills and work experience were suitable for each of these types of employment. They went through the typical educational requirements as well as the skills and experience needed for each of these types of jobs. They provided a line of reasoning as to how the Worker’s age, education, skills and work experience suitably aligned for these types of employment. Their line of reasoning is consistent with the known information about the Worker’s vocational profile. In my view, psychologist’s reasoning was logical and persuasive. I am persuaded by their reasons and accept their conclusions.
    20. The Worker says that ‘I have never been referred to any occupational rehabilitation service’. They also say that ‘I am unaware of any return to work planning process being undertaken, subject to that for which was organised to place me into my suitable position for which I held until my termination’. While I acknowledge these submissions, I am of the view that the weight of relevant factors that I must have regard to under section 32A of the 1987 Act support that the employment options identified constituted employment in work for which the worker was then currently suited given their capacity to work and vocational profile.
    21. I find that employment as a welfare case worker, customer service officer or general clerk/administrative assistant constituted suitable employment for the Worker.
    22. I find that the Worker had a then present inability arising from an injury such that they were not able to return to work in their pre-injury employment but were able to return to work in suitable employment.
    23. I find that the Insurer made the correct and preferable decision that the Worker had ‘current work capacity’ as defined by section 32A of the 1987 Act.
    24. I acknowledge the Worker’s submission that:
    25. If this Work Capacity Decision is correct I am left in a situation where I have no job, no assistance to find a job from the Insurer, and no weekly wage compensation.

      With respect, that cannot be the design of the legislation and certainly cannot be maintained.

      If my employer found that they have no suitable roles for me, considering the array of jobs and positions they maintain, including those as asserted as being ‘suitable employment’ by the Insurer in their Work Capacity Decision, then it is clear that a direct inconsistency emerges, whereby even the Insurer’s own insured disagrees with the Insurer’s assertion as to the existence of ‘suitable employment’.

      No regard is had by the Insurer to these circumstances, nor to the circumstance as to my restricted duties to performed [sic] pre-termination.

      In light of the above decision of the employer it is clearly evident that there is no suitable employment to which I am currently suited.

    26. However, it does not always follow that an employer’s failure to provide an injured Worker with suitable employment means the Worker is unable to return to work in suitable employment. Each case turns on its own facts.
    27. In March 2016, the Worker’s pre-injury employer wrote to the Worker:
    28. Given that you will never be fully fit for pre-injury duties, I have considered alternative options for redeployment within the organisation but due to your restrictions and the type of current vacancies I believe that there are no suitable positions available. I encourage you to also review the list of current vacancies within the organisation (see attached list) and advise me if you believe there are any suitable vacancies by March 2016.

    29. In March 2016, the pre-injury employer wrote to the Worker:
    30. I called you today and you told me that you had not identified any suitable vacancies in the organisation. Therefore you were advised that we have no option, but to terminate your employment, effective immediately.

    31. Based on the information before me, the reason the employer did not provide suitable employment to the Worker was because ‘there are no suitable positions available’. It is important to again note that ‘suitable employment’ must be determined ‘regardless of whether the work or the employment is available’: section 32A(b)(i) of the 1987 Act. In my view, there is no inconsistency in this case with a finding that the Worker is able to return to work in suitable employment but there was no such employment available with the pre-injury employer.
    32. This review cannot investigate the veracity of whether the employer truly had no suitable positions available. The legislative framework deals with that issue separately. The employer’s obligation to provide suitable employment at the request of the Worker arises under section 49 of the 1998 Act. It is unnecessary to reproduce that section here. Suffice to say that an employer must provide suitable employment for a Worker who is incapacitated for work except in very limited circumstances: see section 49(3) of the 1998 Act. However, that is a separate issue to what is at issue in this review: whether the Worker is able to return to work in ‘suitable employment’ for the purpose of determining the amount of their weekly payments of compensation. If the Worker considers that their pre-injury employer has not met its statutory obligation to provide them with suitable employment that issue must be dealt with in the appropriate forum.
    33. The Worker has also submitted that the Insurer has failed to comply with the Workers Compensation Guidelines in making its work capacity decision. This is an issue that goes to the procedures of the Insurer and is reviewable under section 44BB(1)(c) of the 1987 Act. This review is concerned with the merit of the Insurer’s decision.

    Calculation of entitlement

    1. There is no dispute that the Worker had received between 14–130 weeks of weekly payments of compensation and was in the ‘second entitlement period’ at the time of the work capacity decision. The amount of weekly payments of compensation needed to be calculated under section 37 of the 1987 Act. The Worker was working for at least 15 hours a week at the time of the Insurer’s work capacity decision so the formula under sub-section (2) applied:

      (2) The weekly payment of compensation to which an injured Worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:

      (a)     (AWE × 95%) − (E + D), or

      (b)    MAX − (E + D),

      whichever is the lesser.

    2. The formula for MAX – (E + D) does not apply because (AWE x 95%) – (E + D) is the lesser in this case. Section 35 of the 1987 Act defines AWE, E and D.
    3. ‘AWE’means the Worker’s pre-injury average weekly earnings. The Insurer decided that the amount of the Worker’s pre-injury average weekly earnings was $782.14. The Worker has not disputed that decision. I proceed on the basis that the Worker’s AWE is $782.14 for the purpose of calculating their weekly payments of compensation.
    4. ‘E’means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:
    5. (a) the amount the worker is able to earn in suitable employment

      (b) the worker’s current weekly earnings

    6. The Worker was working with their pre-injury employer at the time of the work capacity decision. There are two pay slips before me and they show fluctuating earnings for their ordinary hours of work. One fortnight it was $904.68 and the other fortnight it was $516.96. In my view, it is preferable to find the amount that the Worker is able to earn in suitable employment to see if there is a consistent value for ‘E’.
    7. The psychologist’s report is the only information before me that directly addresses the amount that the Worker is able to earn in suitable employment as a welfare care worker, customer service officer or general clerk/administrative assistant. The wage per hour for welfare case worker is $31.42, customer service officer is $26.32 and general clerk/administrative assistant $25.00. Multiplied by the Worker’s capacity for 24 hours of work a week gives the following amounts for a week of work:
      • Welfare case worker:                              $31.42 x 24 = $754.08
      • Customer service officer:                        $26.32 x 24 = $631.68
      • General clerk/administrative assistant:   $25.00 x 24 = $600.00
    8. The definition of ‘E’ requires the greater amount to be used, which is $754.08.
    9. ‘D’means to the value of non-pecuniary benefits provided to the worker by an employer. As the Worker was not employed at the time of the work capacity decision the value must be $0.00.
    10. The amount of the Worker’s weekly payments of compensation can then be calculated as follows:
    11. (AWE x 95%) – (E + D)

      = ($782.14 x 95%) – ($754.08 + $0.00)

      = $743.03 – $754.08

      = $0.00

    Recommendations

    1. The Authority may make binding recommendations to the Insurer based on the findings of this review: section 44BB(3)(e) and (g) of the 1987 Act. The word ‘may’ indicates a discretionary power: section 9(1) of the InterpretationAct 1987.
    2. I do not consider that any recommendations are appropriate in this case. I have reached the same outcome as the Insurer: the amount of the Worker’s weekly payments of compensation is reduced to $0.00. The work capacity decision to reduce the amount of the Worker’s weekly payments of compensation to $0.00 should stand as made.

    Merit Reviewer
    Merit Review Service
    Delegate of the State Insuran