Open scrollable table of contents

Print entire document

Findings and recommendations on merit review 011/18

Date of Review: 22 August 2017
Our Reference: 011/18

Findings

  1. The worker has had ‘no current work capacity’ as defined by section 32A of the Workers Compensation Act 1987 (the 1987 Act).
  2. The worker is entitled to weekly payments of compensation at the rate under section 37(1) of the 1987 Act from 24 August 2017 to 24 January 2018.

Recommendations

  1. The insurer must recalculate the worker’s weekly payments of compensation in line with the findings above and correct any shortfall in compensation paid to the worker for that period.
  2. This recommendation is binding on the insurer and must be given effect to by the insurer under section 44BB(3)(g) of the 1987 Act.

Background

  1. The worker was receiving weekly payments of compensation for an incapacity for work as a result of a right shoulder injury.
  2. On August 2017, the insurer decided to reduce the amount of the worker’s weekly payments of compensation to $0.00 on the basis that:
    • The worker had current work capacity.
    • Customer service manager constituted suitable employment for the worker.
    • The amount of the worker’s pre-injury average weekly earnings was $XX.
    • The amount that the worker was able to earn in suitable employment was $XX.
    • The rate of compensation payable to the worker under section 37(3) of the 1987 Act was calculated to be $0.00.
  3. The worker referred that decision for internal review. On December 2017, the insurer decided to affirm its original decision.
  4. The worker made an application for merit review on December 2017. The application complied with the requirements of section 44BB of the 1987 Act.

Legislation

  1. The legislative framework for work capacity decisions and reviews is contained in the:
    • Workers Compensation Act 1987 (the 1987 Act)
    • Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)
    • Workers Compensation Regulation 2016 (the Regulation)
  2. Section 43 of the 1987 Act describes a ‘work capacity decision’. An injured worker may refer a work capacity decision for merit review by the Authority under section 44BB of the 1987 Act. The Authority is to notify the insurer and the worker of the findings of the review and may make recommendations to the insurer based on those findings under section 44BB(3)(e). Recommendations are binding on the insurer and must be given effect to by the insurer under section 44BB(3)(g).

Documents considered

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

Submissions

  1. The worker disputes the insurer’s decision about their current work capacity, specifically their ability to return to work in suitable employment. They submit that they lack the skills for the employment identified for them. They submit that they have ‘no skills with computers or office work’. They further submit that the insurer’s decision was based on an occupational rehabilitation provider’s report which did not give a correct account of their skills.
  2. In reply, the insurer gives a history of the dispute. It has not addressed the worker’s submissions or submitted why it thinks that the worker has the skills for the suitable employment identified.

Reasons

  1. 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. The decision to reduce payments hinged on a decision that the worker had current work capacity which in turn hinged on a decision about what constituted suitable employment for them. It is essentially the decision about suitable employment that the worker disputes. I must consider the information before me on its merit and make findings that are most correct and preferable. I may exercise any judgement or discretion available to the insurer when it made its work capacity decision.
  2. The terms ‘current work capacity’ and ‘no current work capacity’ are defined by section 32A of the 1987 Act:
  3. 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

  4. There is no dispute before me that the worker has a present inability arising from an injury such that they are not able to return to their pre-injury employment as a full-time working director for the pre-injury employer.
  5. The real dispute here is if the worker is able to return to work in ‘suitable employment’ as defined by section 32A of the 1987 Act:
  6. suitable employment, in relation to a worker, meansemployment in work for which the worker is currently suited:

    1. having regard to:
      1. 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
      2. the worker’s age, education, skills and work experience, and
      3. 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
      4. any occupational The occupational service provider that are being, or have been, provided to or for the worker, and
      5. such other matters as the Workers Compensation Guidelines may specify, and
    2. regardless of:
      1. whether the work or the employment is available, and
      2. whether the work or the employment is of a type or nature that is generally available in the employment market, and
      3. the nature of the worker’s pre-injury employment, and
      4. the worker’s place of residence.
  7. The occupational service provider prepared a transferrable skills assessment report dated June 2017. It outlined the history of the worker’s injury and their vocational characteristics including age, education, skills and work experience. It identified employment as a sales assistant, customer service manager and sales representative as suitable for them.
  8. The occupational service provider prepared a labour market analysis report dated July 2017. It provided updated information about employment as a sales assistant, customer service manager and sales representative.
  9. Employment as a sales assistant requires computer skills. The transferrable skills assessment report and the labour market analysis report state that ‘repetitive hand and finger movements are necessary when operating electronic tills, computers and pricing guns’. The report goes on to state that ‘The worker possesses the advanced computer skills called upon by employers of Sales Assistants’.
  10. Employment as a customer service manager requires computer skills. The transferable skills assessment report states that ‘frequent repetitive hand and finger movements are required when using pens, calculators, telephones, keyboard and mouse’. The labour market analysis report states that the duties of the role may include ‘accessing and operating computer network systems and communication systems such as public address and paging systems’. It also states that the key functional demands of the role include ‘occasional to frequent repetitive hand and finger movements…when using a keyboard and mouse’.
  11. Employment as a sales representative requires computer skills. The transferrable skills assessment report states that ‘Use of electronic and other equipment is constant and will involve the use of writing implements, telephones, faxes, computers, photocopiers, scanners, calculators and other general equipment’. It further states that ‘The worker possesses the advanced computer skills called upon by employers of Sales Representatives’.
  12. The reference to the worker’s ‘advanced computer skills’ appears to be based on the following comment in the transferrable skills assessment report:
  13. In regards to their computer ability, the worker reported proficiency in Microsoft Word, Microsoft Excel, Microsoft PowerPoint and Microsoft Outlook. The worker reported proficiency in utilising Apple and Windows software and a smartphone daily.

  14. The occupational service provider also stated under the heading Transferrable Skills that ‘on the basis of the worker’s employment and education history as presented in accompanying documentation and verified through interview, it is likely that the worker possesses the following marketable transferrable skills’. The list of skills included ‘computer skills including the ability to type, use email and Microsoft Office programs and search the internet’.
  15. I note that the occupational service provider prepared a functional capacity assessment report dated June 2017. On the topic of ‘keying’ it was stated that ‘The worker reported they are able to complete handwriting and keying tasks without concern or difficulty. They advised if either task is performed repetitively, they will likely experience an increase in right shoulder pain. The worker added they are not a proficient typist, as they implement a “hunt and peck” technique when completing this task’.
  16. The worker has submitted in their application for merit review that they do not agree with ‘most of the skill that Rehab advised that I was able to do such as…computer skills, including the ability to type’. They further submitted that ‘I have no skills with computers’ and ‘never worked on computers’. I expect that the worker has used computers before (at least recreationally) and has some rudimentary level of computer skill. However, I understand the worker to make their submissions in the context of their ability to use computers in employment and that they are making the point that they have no skills with computers for employment or worked with computers in their employment to date.
  17. I put more weight on the worker’s submissions about their computer skills than on the information provided by the occupational service provider about their computer skills. The occupational service provider largely based its assessment on what it understood the worker reported about their computer skills. I do not consider that to be reliable information. First, the occupational service provider may have simply misunderstood what the worker reported. Also, whatever information the worker reported was highly likely to be influenced by the questions they were asked and the way in which those questions were put to them. That important contextual information has not been provided by the occupational service provider. I only have the occupational service provider’s indirect account of what it understood the worker to have reported. Copies of the ‘accompanying documentation’ about the worker’s employment and education history were not provided with the report and the process of how information was ‘verified through interview’ was not explained. If the occupational service provider drew inferences from the worker’s education, work experience or some other source it should have explained its line of reasoning to add some weight to its assessment. In my view, there is a lack of transparency to the way in which the occupational service provider reached its conclusions about the level of the worker’s computer skills and its suitability for certain types of employment.
  18. I consider that the worker’s direct account of their computer skills in their application for merit review holds more weight. In my view, the worker’s submissions are plausible in light of their age, education and work experience. They completed the Higher School Certificate in 1990’s. Computer technology in education was very limited at that time. The worker went on to obtain a various trade related certification. However, no details are provided about the level of computer skills (if any) required to obtain those qualifications. The worker has worked up until the early 2000 mostly in trade related roles and then as a director for the pre-injury employer up until the date of injury. The transferrable skills assessment report provided a list of the duties involved in each one of these jobs. None of the duties expressly refer to the use of computers. In my view, it would be tenuous to imply computer skills from the duties that are listed in the report given that the occupations essentially revolve around physical labour. In my view, the weight of information before me is more consistent with the worker’s submissions about their lack of computer skills.
  19. The transferrable skills assessment report and the labour market analysis report refer to workers being able to learn specific software and computer skills with on-the-job-training. However, ‘suitable employment’ means employment in work for which the worker is currently suited. I am not persuaded that the employment identified is employment in work for which the worker is currently suited having regard to their lack of computer skills. Indeed, I must also have regard to the occupational services that are being, or have been, provided to or for the worker. However, on the information before me, there are no occupational services that are being, or have been, provided to or for the worker to improve their computer skills through education or practical work experience and training. That is another factor that weighs against a view that the employment identified is employment in work for which the worker is currently suited.
  20. I am not persuaded that employment as a sales assistant, customer service manager or sales representative constitutes suitable employment for the worker.
  21. I also consider it important to address the fact that there is information that supports that the worker has done ‘suitable duties’ with the pre-injury employer.
  22. The occupational service provider prepared an initial assessment report dated June 2017. It stated that the worker was working 20 hours a week in ‘suitable duties’ with the pre-injury employer, whilst self-pacing and utilizing their non-dominant left-arm, which is a slower process’. It noted that the treating doctor advised that it was ‘unlikely’ that the worker could sustain their pre-injury duties and while they ‘may be able to continue to work in the pre-injury role’ with ‘modification of their role’ they ‘encouraged them to look at alternate vocations’. The occupational service provider recommended that while doing suitable duties, the worker attend job seeking services to ‘look at other viable employment options which may expedite the achievement of a sustainable return to work goal’.
  23. The occupational service provider prepared a functional capacity assessment report dated June 2017. The worker’s function across several areas was tested and the results were recorded. The assessor recommended that the worker should, among other things:
    • limit their lifting and carrying capacity in various ways
    • avoid overhead work
    • avoid repetitive use of the right arm.
  24. The worker emailed the Authority on January 2018. This was in response to the Authority’s request for further information about their currently employment activities. The worker stated that ‘I have not worked 1 day in 3 months’.
  25. The nature of the worker’s incapacity precludes them using their dominant right arm repetitively or in overhead work. They have been able to do some work in suitable duties with the pre-injury employer because of the flexibility that they can afford them. However, that does not mean that it is employment in work for which they are currently suited. I am not persuaded that it is suitable having regard to the nature of their incapacity. The limits on the use of their dominant right-arm are plainly unsuitable for the pre-injury tasks and the rigours of its day-to-day demands. Indeed, the worker has stated, and I accept, that they have not worked a day in three months.
  26. The information before me does not support that the worker is able to return to work in ‘suitable employment’. I find that they have had ‘no current work capacity’ under section 32A of the 1987 Act.

Calculation of weekly payments

  1. Based on the information before me, the worker has been paid between 14 and 130 weeks of weekly payments of compensation and is in the ‘second entitlement period’ as defined under section 32A of the 1987 Act.
  2. On August 2017, the insurer decided to reduce the amount of the worker’s weekly payments of compensation to $0.00 as calculated under section 37(3) of the 1987 Act.
  3. As I have found that the worker has had ‘no current work capacity’ I find that they were entitled to weekly payments of compensation at the rate under section 37(1) of the 1987 Act as follows:

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:

  1. (AWE × 80%) − D, or
  2. MAX − D,

whichever is the lesser.

  1. I recommend that the insurer recalculate the worker’s weekly payments of compensation under section 37(1) of the 1987 Act from August 2017 to the date of this review. Any shortfall in compensation paid to the worker that is revealed by the recalculation must be corrected by the insurer.
  2. Following this, the insurer is of course required to continue to assess the worker’s weekly payments of compensation in accordance with the legislation based on the available information.

Merit reviewer
Merit Review Service
Delegate of the State insurance regulatory authority