Open scrollable table of contents

Print entire document

Findings and recommendations on merit review 015/18

Our Reference: 015/18

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.
  4. The worker is entitled to ongoing weekly payments of compensation under section 37 of the Workers Compensation Act 1987 (“the 1987 Act”) from September 2017.

Recommendation 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 Workers Compensation Act 1987 (“the 1987 Act”).
  2. The Insurer is to calculate weekly payments of compensation in accordance with my findings above from September 2017.

Background

  1. The worker sustained an injury to their left knee while opening a truck door.
  2. The worker has been in receipt of weekly payments of compensation from the Insurer.
  3. In September 2017, the Insurer made a series of work capacity decisions resulting in the reduction of the worker’s entitlement to weekly payments of compensation to nil under section 37 of the 1987 Act.
  4. The worker applied for internal review of the Insurer’s decisions.
  5. The Insurer conducted an internal review in December 2017 and affirmed its decision that the worker’s entitlement to weekly payments of compensation was nil.
  6. The worker made an application for merit review by the Authority. The application was received in January 2017. The Authority has confirmed with the parties that the application has been made within 30 days after the worker received notice of the internal review, as is required under section 44BB(3)(a) of the 1987 Act. The application has been lodged in the form approved by the Authority.

Legislation

  1. 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).
  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

Submissions

  1. In the application for merit review, the worker makes the following submissions:
    • They would expect payments to continue until they can find appropriate employment that will enable them to continue to support their family.
    • They have a mortgage and bills to pay.
    • When they were injured they were advised to resign and was informed by a representative from the Insurer that they would be paid for 4 years at 80% of their pay and if they get a job they will top it up to 95% of their pay.
    • They had witnesses at the employer and the Union who were present when they stated the worker’s entitlement.
    • They have not yet been able to obtain employment as a result of their right knee injury and now injury to their left knee.
    • In the internal review, it stated that they have been able to progress with work opportunities. Yet they have been job seeking and attending interviews but the worker has yet to get a job offer due to their doctor not approving the role based on their physical capacity.
    • They have been encouraged to put 9 hours, 4 days on their medical certificate and increase their lifting capacity to 15kg to help them find employment.
    • How can their payments stop if they haven’t found work?
  2. In the reply to the worker’ application for merit review, the Insurer makes the following submissions:
  3. The Insurer has acted within the legislation and calculated the worker’s entitlement accordingly in the work capacity decision of September 2017.
  4. The Insurer submits that the worker is no longer entitled to be paid weekly payments of compensation under s37(3) of the 1987 Act.
  5. The worker was provided with the appropriate 3 month’s notice period 4 day postal allowance period for the work capacity decision of December 2017.
  6. The Insurer can neither confirm nor deny any conversations held between the Insurer’s representative and the worker.
  7. Liability for the worker’s right knee condition has been declined and therefore the Insurer considers the right knee cannot be taken into consideration when assessing the worker’s current work capacity.
  8. The worker’s treating doctor continues to certify that the worker is capable of some form of employment despite their right knee condition.
  9. The worker applied for a cleaning position at an employer, attended an interview and received a letter of offer for the role in August 2017. Because there was limited functional requirements information for the worker’s nominated treating doctor to review, the worker did not accept the position.
  10. The statement “I would expect payments to continue until I can find appropriate employment” is an admission that the worker does have capacity for suitable employment, but as yet has not been able to secure employment. A potential employer has advised, as per an occupational health report of September 2017, that the reason the worker did not secure employment with their organisation was due to a high number of applicants.
  11. The worker has demonstrated and submitted that they have the capacity to progress with work opportunities by way of investigating employment vacancies, applying for roles and attending interviews.
  12. The Insurer acknowledges that as yet, the worker has been unsuccessful in securing new employment.
  13. There have been suitable employment opportunities for the worker to explore but the evidence indicates that they have declined to pursue these opportunities without medical evidence to support their reasoning.
  14. The treating doctor has continued to certify the worker as having capacity for some type of employment for their pre-injury hours of 36 hours per week since February 2017 until January 2018 when they were downgraded without explanation.
  15. The worker was medically examined by a doctor again in January 2018 which confirmed that the worker has capacity for full-time work with functional ability to lift-carry 10kg, push/pull 10kg, stand 30 minutes, avoid bending/squatting and rest as required.
  16. The Insurer has provided independent occupational rehabilitation assistance for the worker since May 2017 subsequent to the worker’s resignation from their pre-injury employer in April 2017 while performing suitable duties.
  17. The Insurer acknowledges the worker’s own submission that “Yes I have been job seeking and attending interview but I have been unsuccessful and also had to turn down a job offer due to my doctor not approving the role based on my physical capacity”. Therefore, concluding that adequate support has been provided to assist the worker locate employment and that the Insurer has complied with the legislation in the application of the work capacity decision.

Documents considered

  1. The documents I have considered in this review are those listed in, and attached to, the application for merit review, the Insurer’s reply and any further information provided by the parties.
  2. I am satisfied that both parties have had the opportunity to respond to the other party’s submissions and that the information provided has been exchanged between the parties.

Reasons

Nature of merit review and jurisdictional matters

  1. This matter involves a merit review of the Insurer’s work capacity decision in accordance with section 44BB(1)(b) of the 1987 Act.
  2. The review requires that I consider all of the information before me substantively on its merits and make findings and recommendations that, in light of the information before me, are most correct and preferable.
  3. In their application for merit review, the worker has requested that the following decisions of the Insurer be reviewed by the Authority:
    1. Decision about their current work capacity
    2. Decision about what constitutes suitable employment for them.
  4. These work capacity decisions impact the worker’s weekly payments of compensation from September 2017. The weeks of compensation covered by the Insurer’s decision (and therefore, this merit review) extend to those weeks of compensation from September 2017.
  5. The worker has made submissions concerning the impact of a claimed right knee injury.
  6. The Insurer has declined liability for the worker’s claimed right knee injury and issued a notice under section 74 of the Workplace Injury Management Act 1998. In that notice, the Insurer has declined liability for weekly payments of compensation under section 33 of the 1987 Act.
  7. Section 43(2)(a) of the 1987 Act provides that a a decision to dispute liability for weekly payments of compensation is not a work capacity decision of an Insurer.
  8. I may only review work capacity decisions of the Insurer. In these circumstances, I confine this review to consideration of the worker’s current work capacity and ability to return to work in suitable employment, as it arises from the injury in respect of which the Insurer has accepted liability- namely, an injury to their left knee on the date of injury.
  9. Further, the worker has submitted that when they were injured they were advised to resign and informed by a representative from the Insurer that they would be paid for 4 years at 80% of their pay and if they get a job they will top it up to 95% of their pay. There is a letter of resignation before me, signed by the worker dated April 2017.
  10. This is a review of the Insurer’s decisions about the worker’s “current work capacity” and what constitutes suitable employment for them, in accordance with the provisions of the Workers Compensation Act 1987. In undertaking such a review, I am bound by, and must apply the statutory provisions contained in that legislation.
  11. The circumstances concerning the worker’s resignation and any alleged information they were provided by the Insurer or the Insurer’s representative regarding their benefits in that context, fall outside the scope of this review and are not matters that I am able to take into consideration in conducting this review.

Current work capacity and suitable employment

  1. They sustained an injury to their left knee whilst working as a Storeman for their pre-injury employer. They were loading trucks at work. The worker opened a door on the back of a truck. They bent down as the door was caught, and “felt their knee go”.
  2. The worker continued working as a Storeman and their knee continued to get sore. Symptoms progressed and they consulted their treating doctor. They were referred for investigations. The tests showed a torn meniscus on the medial side of their left knee.
  3. Surgery was recommended. The worker underwent a left knee arthroscopy in January 2015 and a left knee arthroscopic medial meniscectomy in August 2015.
  4. They were referred to see an exercise physiologist to strengthen the knee. They went back to work but the knee started “playing up” again. They consulted the treating doctor again and was placed on light duties.
  5. The worker resigned from their pre-injury employer in April 2017.
  6. The worker was examined by a medical examiner in August 2017. By this time, the worker was not working. The worker reported experiencing pain which prevented them from squatting. Their treating doctor had told them not to bend and squat. The medical examiner stated:

“The worker is still suffering from the results of the injury as it has not completely resolved. Their kneeling, bending and squatting activities have been affected because of the knee injury and the tenderness in the region of the popiletus and the back of the knee”

  1. The medical examiner went on to state:

    “Currently the worker has a capacity for work in which they do not have to kneel, bend and squat all the time. They could do light work, mostly seated work, in which they can sit and change their position from time to time. If such work was available, they could work full-time…. I doubt the worker’s condition will resolve, and it will continue to remain as such…. I believe that the worker’s scope of employment will be affected permanently as a result of the injury…. they could manage the job of retail sales assistant (hardware). They may have some limitation but they could manage home improvement installer and handyman…in the long term it would be difficult for them to manage the vocational options identified”.

  2. The Insurer sought a supplementary report from the medical examiner in light of the last statement above. The Insurer asked: can you please clarify what do you mean with “long term”? In response, the medical examiner stated:

    “I would estimate this to be the next three to four years”.

  3. The Insurer went on to ask the medical examiner about a “new cleaning position” identified for the worker. Notwithstanding that the role identified included duties involving squatting, pushing and pulling- activities that “the worker will have difficulty with”, the medical examiner nevertheless was of the view that the worker “can trial the job and see how it goes, but it may not be smooth sailing”.
  4. The medical examiner provided a further report dated January 2018. Much of that report concerns the worker’s claimed right knee injury, the impact of which I have excluded from this review. At page 9, the medical examiner was asked about their earlier opinion in August 2017 and the certificates from the treating doctor. The medical examiner stated:

“I still agree that the worker has the capacity to work full-time with the listed limitations. The pain in the left knee has in fact decreased and the right knee problem is not worked (sic) related”.

  1. There is a functional capacity evaluation report dated May 2017 before me. It notes that the worker has the following physical restrictions:
    • Reduced left knee range of motion
    • Reduced capacity for prolonged walking however presented with a normal gait
    • Reduced ladder climbing ability
    • Reduced capacity for squatting demonstrating 1 minute
    • Reduced lifting floor to waist above 10 kg
    • Reduced lifting waist to shoulder above 10 kg
    • Reduced bilateral carry above 10 kg x 20m
    • Reduced left unilateral carry above 10kg x 20 m
    • Reduced right unilateral carry above 10 kg x 20m
  2. I note that the worker self-reported a standing limitation of 60 minutes in the assessment.
  3. There are numerous WorkCover- Certificates of Capacity before me from the treating doctor. Essentially, these indicate that the worker’s capacity has, in the opinion of the treating doctor, fluctuated over time.
  4. However, since at least September 2017, and up until January 2018, the worker was certified with the capacity to work 9 hours a day, 4 days per week- effectively full-time hours of work, with restrictions.
  5. However, in a certificate dated January 2018, the worker has been certified with the reduced capacity to work 6 hours a day, 4 days a week.
  6. Whilst all the certificates before me contain a diagnosis of injury that refers to the left knee only, the certificates issued from November 2017 contain reference in the “factors delaying recovery” to “increasing pain in the R (right) knee”. These later certificates also reduce the worker’s lifting/pushing/pulling capacity to 10 kilograms (from 15 kilograms), and reduce the worker’s standing tolerance from 60 minutes to 30 minutes.
  7. It appears to me, that it is likely that the treating doctor had taken into account the impact of the worker’s right knee condition in those more recent certificates. In those recent certificates, the treating doctor refers to a right knee condition in “factors delaying recovery” and provides a more conservative view on some restrictions to those contrasted when they had not made such comments. There is no indication that there was any deterioration in the worker’s left knee condition. This, on its face, suggests in my view an altered view based on that right knee condition.
  8. Further, whilst I note the worker says they were encouraged to put 9 hours a day, 4 days per week on their medical certificates- it is not the worker’s opinion that is contained in those medical certificates. It is the medical expert opinion of the treating doctor and they had certified their opinion as to the worker’s capacity for employment.
  9. In these circumstances, and on balance, I prefer that it is the treating doctor’s opinion as to the worker’s capacity arising from the left knee injury as the treating doctor certified prior to any reference they had made to the right knee. That is, that the worker has the capacity to work in some type of employment, 9 hours a day, 4 days a week, with a lifting/carrying/pushing pulling ability of 15 kilograms, standing tolerance of 60 minutes, to avoid bending and squatting, and the worker is to “rest as required”.
  10. I acknowledge that the medical examiner indicated in their report of January 2018 that the worker’s left knee pain had decreased. However, having considered the further report in detail, it also appears to me that whilst they accepted the limitations referred in the medical assessment certificate of the treating doctor, the medical examiner has not altered their earlier view that if the worker did “light work, mostly seated work, in which they can sit and change their position from time to time” they would be able to work full-time. They have also not further commented upon their earlier view that in the long term “it would be difficult” for the worker to manage the vocational options identified by the Insurer, and the medical examiner has estimated this to be the next three to four years. I accept that view of the medical examiner.
  11. I also take into consideration the opinion of the treating doctor. Their view on appropriate functional capacity restrictions is essentially consistent with that of the medical examiner and that of the functional capacity evaluator. The treating doctor’s view regarding the standing limitation of 60 minutes and the need for “rest as required”, to some extent, aligns with the view expressed by the medical examiner that if the worker works in “mostly seated work, in which they can sit and change his position from time to time” they can work full-time.
  12. I therefore find that the worker is able to work full-time hours of 9 hours per day, 4 days per week with the following restrictions:
    • Lifting/carrying capacity: Up to 15kg
    • Standing tolerance: 60 minutes
    • Pushing/pulling ability: Up to 15 kg
    • Bending/twisting/squatting ability: avoid bending and squatting
    • Other: rest as required.
  13. I accept the medical examiner’s opinion that “in the long term it would be difficult” for the worker to manage the vocational options identified by the Insurer, and the medical examiner has “estimated this to be the next three to four years”.
  14. I also note that the functional capacity evaluation dated May 2017 makes it clear that the worker has a reduced ladder climbing tolerance, and further a document from the treating doctor dated May 2017 supports that roles are not suitable if the worker is constantly on a ladder.
  15. In order to determine whether the worker has an entitlement to weekly payments of compensation I am required to determine whether they have “current work capacity”.
  16. Section 32A of the 1987 Act defines “current work capacity” and “no current work capacity”.

“Current work capacity” is defined 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 his or her pre-injury employment but is able to return to work in suitable employment.

“No current work capacity” is defined 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.

  1. The Insurer has determined, in accordance with the medical evidence that the worker is unable to return to their pre-injury employment. That decision has not been challenged by the worker.
  2. To determine whether the worker has current work capacity, I am required to consider whether they are able to return to work in “suitable employment”. Suitable employment is defined in section 32A of the 1987 Act as:
    1. employment in work for which the worker is currently suited:
      1. having regard to:
      2. 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
      3. the worker’s age, education, skills and work experience, and
      4. 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
      5. any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
      6. such other matters as the WorkCover 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.
  3. The roles of Retail Sales Assistant (Hardware) (ANZSCO Code 621111) Handyperson (ANZSCO Code 899111) and Home Improvement Installer (ANZSCO Code 821412) are identified as suitable employment for the worker in a vocational assessment report and Labour Market Research Report dated May 2017.
  4. It is important to note, particularly in the context of this dispute, that it is not enough that the worker has some physical capacity for some type of employment. There must be evidence that the worker is able to return to work in suitable employment- having regard to “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” and the balance of matters referred to in the definition of suitable employment in section 32A of the 1987 Act.
  5. The role of a Handyperson involves cleaning gutters, weeding, digging, and pruning- roles that would require the worker to use a ladder for significant amounts of time or duties that require them to bend and squat. These activities are not commensurate with the nature of their incapacity as I have found and these are activities that they should avoid. My view that the role is not suitable from a functional point of view was confirmed in a document signed by the treating doctor. The role is not suitable employment for the worker having regard to the nature of their incapacity, and I am not persuaded the role is suitable employment as defined in section 32A of the 1987 Act.
  6. Similarly, the role of a Home Improvement Installer involves putting in place home improvements, such as awnings, curtains, blinds and flyscreens. I agree again with the treating doctor’s assessment that the role is not suitable due to the ladder climbing requirements of such employment. The role involves occasional squatting and crouching “in order to access awkward spaces”- activities which the worker should avoid. The role is not suitable employment for the worker having regard to the nature of their incapacity, and I am not persuaded it is suitable employment as defined in section 32A of the 1987 Act.
  7. A Retail Sales Assistant (Hardware) works in retail businesses which supply and sell a range of hardware goods such as lengths of timber, paint, brushes, handtools, screws, nails, tap washers and other general house maintenance requirements. They may have to demonstrate tools and explain how products work.
  8. According to the information contained in the labour market assessment report, job tasks include:
    • Advising customers on location, selection, price, delivery, use and care of goods
    • Operating cash registers and accepting payment, or preparing finance arrangements
    • Taking special order for items not currently in stock or normally in stock
    • Packaging goods for customers and arranging delivery
    • Pricing stacking and displaying items for sale
    • Being aware of health, safety and welfare issues
    • Participating in stocktaking (counting and describing goods in stock)
    • Arranging for repair of damaged goods
    • Ordering items.
  9. The physical demand of the role is described as “light to medium”. The physical tasks are:
    • Frequently stands at sales counters or walks about the workplace assisting customers, locating merchandise, shelving product or setting up shop displays.
    • Manually or electronically enters customer purchases into the till, receives cash, cheques, eftpos and credit card payments and processes those and issues receipts.
    • Lifts and passes items across a scanner.
    • Stretching and twisting movements are likely to be required occasionally when reaching up or down to shelves.
    • Bending, squatting or crouching movements may be required when picking up items or stocking shelves.
    • Use of office hand held equipment such as pens or calculators.
    • Mental skills include communication, memory, recording and calculating skills.
  10. The occupational assessor has referred to three labour market contacts of Retail Sales Assistant roles with a hardware focus. One of those roles involves “lifting heavy boxes or equipment” and when advised of a number of the worker’s restrictions, the contact advised that “it is not likely that they would hire a worker in this role with such restrictions”. The assessor stated, correctly in my view, that the position “is not suited to the worker”.
  11. Another role described was for a Team Member (plumbing) for an employer. An employer representative, having been informed of the worker’s restrictions, “recommended that the worker apply for the customer service role which does not require heavy lifting”, clearly implying that this role also involves “heavy lifting” which is not commensurate with the worker’s capacity to lift, push and pull up to 15 kilograms in weight. This role would therefore appear not to be suitable for the worker.
  12. The remaining role described is as a Team Member Customer Service (Retail). In my view, there is an inadequate description of that position, and the particular tasks and functions undertaken in that role to allow an appropriate assessment of the particular suitability of that role in light of the worker’s physical capacity.
  13. For example, whilst the “employer representative”, (who is not identified) was advised of the worker’s lifting restrictions of no lifting/pushing/pulling above 12 kilograms and a “reduced squatting capacity” there is no information that the person was also advised that the worker has a reduced tolerance for standing and is only able to stand up to 60 minutes at a time, and requires “rest breaks”.
  14. Given the nature of the worker’s knee injury as I have considered in the medical evidence, and noting the “typical physical demands” of the role of a Retail Sales Assistant (hardware) are described to involve “frequently stands at sales counters or walks about the workplace assisting customers”, this is in my view a significant omission.
  15. I note that the medical examiner states that the worker “could manage the job of retail sales assistant (hardware)”. However, apart from this bare assertion, there is no real analysis the medical examiner in their reports as to the physical requirements of the role of a Retail Sales Assistant as it relates to the worker’s physical restrictions. In fact, the medical examiner has appeared to accept that the worker could engage in a number of jobs suggested by the Insurer, which would inevitably involve the worker contravening restrictions imposed on their work capacity, notwithstanding that it “may not be smooth sailing” and that the worker would have difficulty with such roles. In my view, the medical examiner’s opinion as to the worker’s capacity to engage in particular roles should be considered with caution, there is no adequate analysis in the reports as to the particular tasks the worker would perform in any role.
  16. In fact, the medical examiner stated that the worker “could do light work, mostly seated work, in which they can sit and change their position from time to time”. Whilst I understand this appears to be a statement made about the worker’s ability to engage in full-time hours of work- the role of a Retail Sales Assistant (Hardware) is clearly not a role, having regard to the report and the labour market contact information, that involves “mostly seated work in which they can sit and change position from time to time”.
  17. I also note the treating doctor provided medical “approval” of the role but this was subject to a significant qualification- namely that the worker could perform such work “provided floor duties only”. It is not entirely clear to me what this means- for example, whether this would preclude the worker from undertaking physical tasks inherently required of the role of a Retail Sales Assistant- such as lifting stock and stacking shelves, performing cash till operations.
  18. What is clear, however, is that in the treating doctor’s view, the worker is not capable of performing all of the inherent duties of a Retail Sales Assistant- but only “floor duties”. It is important to note that what is being considered is the worker’s ability to return to a real job as a Retail Sales Assistant (hardware) and the inherent duties of such a role.
  19. Further, it is not clear whether the treating doctor was provided with a full copy of the list of physical demands of such employment as now presented in this review. In particular - the requirements that in such a role a worker “frequently stands at sales counters or walks around the workspace assisting customers, and bends, squats and crouches when picking up items or stacking shelves” is an important physical requirement that does not, on the information before me, appear to have been provided to the treating doctor.
  20. In my view, it is doubtful that in the real day-to-day demands of such a role in the employment market, in the role of Retail Sales Assistant (Hardware) would enable the worker to stand for maximum periods of only 60 minutes at a time, and simply take “rest breaks” as the worker required them. In my view, the treating doctor’s restriction of a 60 minute standing limit, and the requirement that the worker take “rest breaks as required” are incompatible with the inherent physical demands of such a role as it is described in the labour market research report.
  21. It is also of concern that is the role of a Retail Sales Assistant, is not, in the view of the medical examiner, a long term, and therefore durable position having regard to the nature of the worker’s incapacity. The medical examiner stated “in the long term it would be difficult for them to manage the vocational options identified”. The medical examiner went on to state this that this meant the role would be suitable for “3 or 4 years”, presumably on a full-time basis.
  22. The newly inserted definition of suitable employment brought about by the 2012 weekly compensation amendments clearly renders the availability of employment (and therefore the intermittency of employment), and general industrial employment market conditions matters to which I should not have regard. Further, I understand that I am reviewing whether the role is employment in work for which the worker is currently suited.  However, this does not mean that I should not consider whether the suitable employment identified is, having regard to the nature of the worker’s incapacity as I have found it, employment that the worker is able to continue to perform in a functional sense. In my view, the view of the medical examiner adds further weight to the argument that the role is not currently suitable for the worker having regard to the nature of their incapacity.
  23. Further, even if it were the case that the physical requirements of the role of a Retail Sales Assistant were suited to the nature of the worker’s incapacity, I am not persuaded that having regard to their age, their education, their skills, work history and having regard to the occupational rehabilitation assistance provided to them, that the role is suitable employment for them in any event.
  24. As the labour market analysis report indicates, the median age for this employment is mid-20s. The worker is now a person who might be described as somewhat of an advanced age in the labour market for such a role, and the evidence confirms this. Whilst I understand the availability of employment in the employment market is a matter to which I must not have regard, the potential availability of the employment to the worker having regard to their age is a matter to which I must have regard. The labour market analysis describes the median age for such roles as “unfavourable” for the worker and I accept this analysis.
  25. The worker completed school to year 10 level. They have average literacy and no computer skills. They have no “tickets’ and the only qualifications they hold are in Certificates I, II, and III.
  26. The worker has what might be described as a “narrow” work history essentially comprised of performing manual tasks in manual work environments. They were a Storeperson at the pre-injury employer for 15 years, and the only duties that are listed in the vocational assessment report before me which they undertook in that role are “picking boxes, loading trucks, completing paper work when loading trucks”. Prior to that the worker worked as general labourer, and worked as a subcontractor labourer for 30 years.
  27. Yet, the role now identified as suitable for the worker, apparently in light of their trade experience, is a role selling goods to customers, in a retail sales context, involving retail customer service tasks and skills. This role would represent a marked departure from the type of employment described in the worker’s work history, particularly noting their age, and light of what I consider to be the limited occupational rehabilitation assistance provided to them given those circumstances, and their very limited capacity to independently engage in job seeking activities.
  28. The role of a Retail Sales Assistant (Hardware) involves performing customer service tasks and selling goods to customers, inevitably involving customer service skills to perform these tasks, including the ability to explain, demonstrate and sell products to customers, and effectively to facilitate the sale of retail hardware goods to customers in a retail sales environment. Another task listed in the report, involves operating electronic cash registers, or tills.
  29. I understand the worker has worked as a Storeman for a lengthy period and has a “trade” background. They clearly do have transferrable skills, and a “trade background” relevant to the role now identified. However, I cannot see, on the information now before me, that the worker possesses the appropriate skills to be able to perform such a role, including the customer service tasks and functions required of such a role as it is described in the reports before me. They have never on the information before me sold goods to a customer, explained and demonstrated products to customers in a retail context to facilitate sale of those goods, or used an electronic till, for example. Whilst I understand the role may not involve computer use, such a role often now involves the use of electronic devices to perform transactions. The worker cannot even use a computer at a very basic level. It cannot be assumed that the worker will be provided with on the job training, or that any future employer will accommodate their lack of skill and experience. Effectively, the worker must be able to undertake the task requirement of the role of a Retail Sales Assistant as it realistically exists in the employment market, having regard to their age, their current skills, their work history to date, and the occupational rehabilitation services provided to date.
  30. I do note the list of transferrable skills contained in the vocational assessment report. It is not evident to me, having regard to the extent and nature of duties listed in the worker’s work history, how they currently possess “accurate cash handling” and “marketing goods or services”, for example. The worker’s work history was comprised of Storeperson and labouring roles. It is not evident to me, on the information provided regarding the duties they undertook in previous employment how they would have acquired such transferrable skills.  If they do possess such skills, the vocational information before me is deficient in explaining how that is the case.
  31. In fact, the labour market contact, referred to in the labour research report provides support in my view, that the worker likely does not, on balance, possess the skills required, nor a work history amenable to the performance of such a role, as would be required by employers in the realities of the employment market, particularly in the absence of further occupational rehabilitation provided to them, noting their age, and work history.
  32. For example, one employer in the labour market research report dated May 2017, advised that they were looking for a Retail Sales Assistant (tool or trade experience required- and the worker does possess trade experience) and someone who “has worked in a retail environment”.
  33. On the information before me, the worker has worked as a Storeperson at the pre-injury employer, picking boxes, loading trucks and completing paper work. They have worked in a warehousing and manual labour environment, but they have not worked in a “retail environment” whereby one engages directly with customers in a retail context and sells goods to them, and performs customer service tasks, and functions.
  34. In the same report, the role (“Job Advertisement one”) states that whilst there are no educational/experience requirements for the role, “relevant experience is helpful”. The statement that there are “no educational requirements” and no “experience requirements” for the role, sets a bare minimum standard for that particular employer in the labour market for employment in its organisation. It does not entail that the worker is able to return to work in suitable employment in such a role, when one has regard to the entirety of matters I must consider as listed in the definition of suitable employment in section 32A of the 1987 Act, including the nature of their incapacity.
  35. Further, it is clear that for even that role - “relevant experience is helpful”. I approach statements that there are “no education requirements” and “no experience requirements” as apparently reported by the unidentified “employer representative” with caution noting that at the same time “relevant experience is helpful” for such a role. Such statements do not accurately reflect the balance of information contained in the information before me, including the ANZSCO job description of the role.
  36. Whilst I do understand there may be varying experience requirements demanded by employers in the labour market, I am assessing whether role of a Retail Sales Assistant (hardware) is suitable having regard to the totality of the information before me, and having regard to the entirety of the matters referred to in the definition of suitable employment in section 32A of the 1987 Act.
  37. The Insurer submits that the worker applied for a cleaning position at an employer, attended an interview and received a letter of offer for the role in August 2017. Because there was limited functional requirements information for the worker’s nominated treating doctor to review, based on the treating doctor’s recommendation the worker did not accept the position. It is not entirely clear to me what the purpose of making such a submission is. The role of a cleaner has not been identified as suitable employment before me. I would simply note that in the absence of further information about that role, noting my findings made, it would appear entirely appropriate that the worker not undertake such employment in a role if that role is not suited to the nature of their incapacity.
  38. Nor do I accept the Insurer’s submission that the fact that as the worker made the statement “I would expect payments to continue until I can find appropriate employment” this is an “admission that the worker does have capacity for suitable employment”, but as yet has not been able to secure employment.
  39. Whilst I do accept it is not the Insurer’s role to make payments of compensation until the worker “finds” employment (and nor is it the Insurer’s role to secure employment on the worker’s behalf) whether or not the worker has “current work capacity” is not to be determined by a mere statement that the worker expects their payments to continue, or that they are searching for jobs, or even securing interviews, but an evaluation of the entirety of the evidence, including the medical information, in light of the provisions of the 1987 Act, including the definition of “suitable employment”.
  40. The fact that the worker is pursuing employment, including roles that appear to me to be unsuited to the nature of their incapacity, in compliance with their return to work and occupational rehabilitation assistance obligations, and the fact that they have been offered interviews, does not mean that the role now identified by the Insurer is suitable employment when one has regard to the totality of matters I have referred to above. This is particularly so, when the evidence before me, as I have indicated demonstrates that the functional requirements of the role are unlikely to be suitable having regard to the nature of the worker’s incapacity in the medical information before me.
  41. In my view, having regard to 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 them (under section 44B), their age, education, limited skills and narrow work history and experience, and the occupational rehabilitation services that are being, or have been, provided to or for the worker, and having regard to the balance of matters contained in the definition of suitable employment, I am not persuaded that the role of a Retail Sales Assistant (Hardware) is suitable employment for the worker.
  42. I am not persuaded that any of the roles identified constitute suitable employment for the worker, and I find accordingly in respect of the weeks of compensation from September 2017.
  43. I find that the worker has, and has had, a present inability arising from an injury such that he is and was not able to return to work in either their pre-injury employment or in suitable employment from September 2017. I find that the worker has no current work capacity in accordance with the definition in section 32A of the 1987 Act.
  44. The Insurer is to calculate weekly payments of compensation in accordance with these findings from September 2017.

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