SIRA Logo

Merit review WC073/18

An example of a vocational assessment report making findings on suitable employment based on its own opinion of the worker’s functional limitations and not what was specified by the nominating treating doctor whose opinion was accepted by the reviewer.

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 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.

3. The Worker has no current work capacity.

Recommendations based on findings

4. On the basis that liability has been accepted, the Insurer in its review decision is to calculate the Worker ’s weekly compensation entitlement having had regard to my above findings on current work capacity.  This is to apply from March 2016.

Background

5. In November 2014, the Worker sustained an injury to their lower back during the course of their employment with pre-injury employer.

6. In March 2016, the Insurer made the following work capacity decisions:

  • The Worker has the capacity to work full time hours per week
  • The role of truck driver and courier driver constitutes suitable employment for the Worker
  • The Worker ’s pre-injury average weekly earnings is $2,088.06.
  • The Worker is able to earn $1300.00 per week in suitable employment

7. In April 2018, the Worker referred the work capacity decision for internal review by the Insurer.

8. In May 2018, the Insurer affirmed its original work capacity decision and sent notice of the decision upon internal review to the Worker the same day.

9. In June 2018, the Authority received the Worker’s application for merit review. The application complied with the requirements of section 44BB of the 1987 Act.

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

  • Workers Compensation Act 1987 (the 1987 Act);
  • Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
  • Workers Compensation Regulation 2016 (the Regulation).

11. Section 43 of the 1987 Act describes a “work capacity decision”.

12. Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.

Legislation

Documents considered

13. The documents considered for this review are the application for merit review and the Insurer’s reply form, the documents listed in and attached to those forms, and any further information provided to the Authority and exchanged between the Worker and the Insurer.

Submissions

14. I have read and considered the Worker ’s submissions made in support of their application for merit review. In summary, the Worker submits:

  • Their specific restrictions will not work with the vocations described by the Insurer – one local return load per day as a truck driver is not full-time employment, and pushing and pulling is as tolerated by them and it is part of being a delivery driver.
  • Specialist A’s report was not taken into consideration by the Commission to determine liability.
  • Specialist B in their report dated June 2015 states that they have doubt that they can resume truck driving duties in the foreseeable future, their symptoms are unlikely to improve sufficiently over the next 6 months to enable them to return to truck driving and redeployment is very likely the next rehabilitation option for them.
  • Specialist C reports that symptoms are exacerbated by prolonged sitting and standing.

15. I have also read and considered the Insurer’s submissions which may be summarised as follows:

  • The roles of Truck Driver and Courier Driver constitute suitable employment for the Worker, they are able to earn $1300 in suitable employment and their entitlement to weekly benefits was found to be nil.
  • It has reviewed the totality of relevant medical evidence, including Specialist A’s assessment of the Worker ’s capacity and has made a work capacity decision on the balance of that medical evidence. Apart from inconsistent medical certificates from the general practitioner, the Worker has not provided any medical evidence refuting the findings.
  • The findings of the arbitrator in the Workers Compensation Commission as outlined in their certificate of determination are not inconsistent with its work capacity decision for the period subsequent to March 2016.

16. In June 2018, the Authority provided the parties with the opportunity to make further written submissions on the issues that have arisen in this merit review.

17. In July 2018, the Authority received a response from the Worker which may be summarised as follows:

  • They do not refute that they have some capacity to work however feels that the tasks the Insurer wants them to do are unacceptable.
  • As a driver of a 60-ton truck it is imperative that they have full concentration on their vehicle and not be distracted by the constant pain in their lower leg.
  • They dispute they can do 4 return trips a day in a car or even 4 local trips a day as the longer they drive the more pain they are in.
  • The judgement at the Court House was that $1,300 per week as a truck driver was unacceptable and was summarily dismissed.
  • The reports of Specialist B, Specialist D and Specialist C should be preferred as they are specialists whereas the treating doctor is a general practitioner.

Reasons

Nature of merit review

18. This matter involves a merit review of the work capacity decision/s 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. The review requires that I consider all of the information before me substantively on its merits and make findings that, in light of the information before me, are most correct and preferable.

19. Noting the Worker ’s application for merit review and their submissions, I consider that they have referred the following decisions to the Authority for review:

  • A decision about current work capacity.
  • A decision about what is suitable employment.
  • A decision about the amount the Worker is able to earn in suitable employment.
  • Any other insurer decision that affects the Worker ’s entitlement to weekly compensation payments, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation.

20. This merit review will confine itself to consideration of the above.

Current work capacity and suitable employment

21. I find the treating doctor’s opinion to be persuasive given that they have been the Worker ’s nominated treating doctor for some time and has regularly reviewed their progress with respect to capacity for work.

22. Although recent, I do not find the Centrelink medical certificate dated April 2018 to be persuasive as it provides very little information on the Worker ’s injury or its progression.

23. The other medical opinions of Specialist D, Specialist B, and Specialist C are all quite dated and are of little use to me in the assessment of the Worker ’s current work capacity.

24. I therefore find on the basis of the treating doctor, who has issued certificates of capacity that span over the period from August 2015 to February 2018.

25. The findings of capacity over this period have remained consistent and are that the Worker has capacity for pre-injury hours of 8 hours/day, 5 days/ week with the following tolerances:

Lifting / carrying 15kg max
Sitting / standing as tolerated
Pushing / pulling as tolerated
Bending / twisting / squatting as tolerated
Driving Truck driving – 1 return load/day, local only, automatic only.
Car/Ute – 4 return trips/day, 90 mins each leg, break 15 mins after each leg

26. Section 32A of the 1987 Act defines “current work capacity” as:

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 their or her pre-injury employment but is able to return to work in suitable employment

27. “No current work capacity” is defined in section 32A of the 1987 Act as:

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

28. There is no dispute that the Worker is unable to return to their pre-injury employment as a Truck Driver for the pre-injury employer.

29. I am therefore required to consider whether the Worker is able to return to work in suitable employment in order to determine whether they have “current work capacity” or “no current work capacity”. Suitable employment is defined in section 32A of the 1987 Act as:

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 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 the employment market, and

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

(iv) the worker’s place of residence.

30. I have a somewhat dated Vocational Assessment Report dated November 2016. As it is the only vocational assessment before me, it will form the basis upon which I assess suitable employment for the Worker.

31. The proposed employment options are that of Truck Driver and Delivery Driver.

32. The Worker is reported to possess a HC License and a Class C Driver’s License. Their employment history indicates that they have been employed as a Truck Driver for some 20+ years (1992-2015). Indeed, the Worker ’s employment has been limited to that of truck driving for various businesses. I therefore find that the Worker possesses the skills and work experience to be well suited to the roles of Truck Driver or, by extension, Delivery Driver. Age and education are no impediment to the roles being suitable.

33. The real issue is whether the roles are suitable having regard to the nature of the Worker ’s incapacity.

34. I note that the Worker has a very specific driving tolerance which, for ease of reference, is reproduced below:

“truck driving – 1 return load/day, local only, automatic only. Car/Ute – 4 return trips/day, 90 mins each leg, break 15 mins after each leg.”

35. The vocational assessment report states that the roles of Truck Driver and Delivery Driver may require “sitting frequently for up to 2 hours” with “frequent climbing in/out of truck”. Employer contacts refer to lifting requirements of 10kg, possession of HC license, good driving record and experience with transporting raw materials/supplies to different destinations.

36. The information in the vocational assessment report does not persuade me that the Worker has the functional capacity to perform as a Truck Driver or Delivery Driver for the following reasons:

  • The Worker ’s tolerance of 90 mins each leg, break 15 mins after each leg is not consistent with the requirement to sit for up to 2 hours.
  • The requirement of frequent climbing in and out of van/truck indicates to me that there will be likely more than 1 return load/day or 4 return van trips/day.
  • The employer contacts do not address the Worker’s specific tolerances, referring only to driving experience and transportation of goods.

37. I note that while the vocational assessment consultant found the employment options to be suitable employment, they largely relied on their own findings regarding the Worker ’s physical tolerances and does not specifically address the tolerances as found by the treating doctor, or the information in the vocational assessment report.

38. Similarly, the functional capacity evaluation dated November 2015 only considered that the Worker could perform the “demonstrated lifting capacity”.

39. I acknowledge that the treating doctor indicated their approval of the employment options however I do not accept the approval, as I find it to be inconsistent with what is contained in the treating doctor’s WorkCover NSW certificates of capacity and the physical requirements of the roles, such as “sitting frequently for up to 2 hours”, as discussed above.

40. I also reiterate my finding in the third dot point above, that there may not be any such role for the Worker, as the employer contacts do not refer to the Worker ’s specific physical tolerances.

Finding on current work capacity and suitable employment

41. On balance, I find that none of the employment options recommended in the functional capacity evaluation constitute suitable employment for the Worker having had regard to the factors in the definition under section 32A.

42. As the Worker has a present inability arising from an injury such that they is not able to return to work in their pre-injury employment or in suitable employment, I find that the Worker has no current work capacity pursuant to the definition under section 32A of the 1987 Act.

43. Having found that the Worker has no current work capacity, it is not necessary that I make any finding in relation to the amount the Worker is able to earn in suitable employment.

Calculation of Entitlement

44. I note that an application to resolve a dispute was heard at the Workers Compensation Commission. In January 2018, a senior arbitrator determined that the Insurer pay the Worker weekly payments of compensation for various closed periods up to the date of the Insurer’s work capacity decision in March 2016.

45. I note that the Insurer’s work capacity decision did not include any calculation of the Worker ’s weekly compensation entitlement as liability was disputed at that time. It is unclear on the information before me whether liability was accepted from March 2016.

46. It is not within the jurisdiction of the Authority to make any findings in relation to liability. Any disputes regarding liability would be a matter for the Workers Compensation Commission to determine.

47. However, should liability be now accepted, it is appropriate for the Insurer in its review decision to calculate the Worker ’s weekly compensation entitlement having had regard to my above findings on current work capacity.  This is to apply from March 2016.

Merit Review Service
Delegate of the State Insurance Regulatory Authority