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Findings and recommendations on merit review 017/18

Our Reference: 016/18

Findings

  1. The worker has ‘no current work capacity’ under section 32A of the Workers Compensation Act 1987 (the 1987 Act).
  2. The worker meets the requirements of section 38(2) of the 1987 Act and is entitled to weekly payments of compensation at the rate under section 38(6) of the 1987 Act.

Recommendations

  1. The insurer must reassess the worker’s entitlement to weekly payments of compensation under section 38 of the 1987 Act from February 2018 to March 2018 in line with the above findings.
  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 has been receiving weekly payments of compensation for incapacity for work as a result of a psychological injury. The worker sustained the injury while working as a client services officer for the pre-injury employer.
  2. In November 2017, the insurer decided to discontinue the worker’s weekly payments of compensation on the basis that the worker did not meet the requirements under section 38(3) of the 1987 Act to be entitled to weekly payments after the second entitlement period. The insurer notified the worker that their weekly payments would be discontinued in February 2018.
  3. The worker referred that decision for internal review. In December 2017, the insurer affirmed its decision.
  4. The worker applied for merit review by the Authority in January 2018. 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 Occupational rehabilitation 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 submits that data entry clerk is not suitable for them because of their limited typing speed. The worker also submits that their customer service skills are not transferable to external clients. The worker refers to specific pages in the vocational assessment report in support. They submit that the treating psychiatrist states that they require a gradual return to work. Further, the nominated treating doctor states that the worker needs to avoid confrontation/aggression and avoid meeting with people and avoid being on the telephone. The worker submits that data entry clerk and despatch and receiving clerk are not suitable. The independent medical consultant’s report dated November 2016 supports that the insurer has not satisfactorily ensured that the worker has been assisted in return to work and it did ‘too little too late’. The worker submits that their mature age is a barrier to employment and refers to a report titled ‘Barriers to Mature Age Employment’. The worker also refers to low typing speeds as a barrier to employment.
  2. The insurer submits in reply that the worker does not meet the special requirements for continuation of weekly payments under section 38(3) of the 1987 Act for the reasons stated in its work capacity decision notice and internal review decision notice. It confirms that it has received a new certificate of capacity dated February 2018 in which the worker is certified as having no current work capacity from February 2018. The insurer is ‘in the process of assessing this and we have written to the nominated treating doctor seeking further information on the downgrade in certification’.

Reasons

Nature of merit review

  1. This is a merit review of the insurer’s decision to discontinue the worker’s weekly payments of compensation on the basis that they do not meet the requirements under section 38 of the 1987 Act to be entitled to weekly payments after the second entitlement period. I must consider the information before me afresh and make findings that are most correct and preferable.

Current work capacity

  1. The worker’s entitlement to weekly payments of compensation after the second entitlement period depends on if they have ‘current work capacity’ or ‘no current work capacity’ under section 32A of the 1987 Act:

    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

  2. In November 2015, an occupational rehabilitation consultant produced a case conference report. It detailed a discussion between the occupational rehabilitation consultant, the worker and the treating psychiatrist. The treating psychiatrist ‘outlined that the worker is not fit to return to work with the pre-injury employer’ as each time the worker has done so they are ‘re-traumatised’. The treating psychiatrist ‘advised that the worker’s coping skills/psychological well-being requires further strengthening before considering a return to work’. The treating psychiatrist ‘reported that the worker is restricted from undertaking customer service/client contact duties with external customers/general public via phone or face-to-face’. The treating psychiatrist ‘reported that the worker needs to be supported with a graduated return to work via a Work Trial or similar, and progressing to each stage of the plan (including contact with internal colleagues/staff) would be dependent upon successful achievement of the previous stage/s’.
  3. In August 2016, the worker completed a work trial in a research and administration support role through a university. The work trial went for about nine weeks in total. It went well but there was no offer of employment following the work trial.
  4. In November 2016, an independent medical consultant examined the worker for the insurer. The independent medical consultant reported:

The worker’s anxiety has taken on a chronic course. The worker is not fit for pre-injury employment and not fit with the pre-injury employer. The worker has some capacity for some part-time work. Unfortunately, only part of the worker’s incapacity is due to the work injury. The worker has also developed a low functioning lifestyle and is not actively looking for employment. They are passive. In essence, the worker is disengaged from the workforce, and that would not be due to a psychiatric disorder.

  1. In June 2017, the treating psychiatrist reported on the worker’s work capacity:

We had a successful but brief return to work program last year. There was no ongoing possibility to extend the program any further hence the worker had to quit that. I believe that the worker will benefit from work rehabilitation. They are quite enthusiastic about going back to work. However, it would be highly recommended to commence any such program in a titrated pattern and with support from a work rehabilitation consultant. The success of such a program would depend to a large extent on the environment that the worker is placed in and the job responsibilities.

  1. In September 2017, the nominated treating doctor, issued a certificate of capacity. The nominated treating doctor certified that the worker’s stress at work, dealing with difficult and aggressive clients and excess workload led to ‘depression and anxiety, alcoholic liver disease secondary to this’. The nominated treating doctor certified that the worker had capacity to work for six hours a day, three days a week and made the following comments:

[A]s per the return to work plan and the treating psychiatrist’s recommendations consideration may be given to the worker upgrading to phone/face to face contact with internal staff as part of a staged/graduated return to work programme in one of the job areas identified, as advised by the treating psychiatrist this is a task that the worker would be required to upgrade their tolerance for as part of a graded return to work program and progress with these duties and upgrade would determine if this was a suitable task for the worker to perform.

  1. The nominated treating doctor confirmed this certification on October 2017, November 2017, December 2017 and January 2018.
  2. In January 2018, the nominated treating doctor certified that the worker had no current work capacity for any employment from January 2017 to February 2018. I infer that the nominated treating doctor meant January 2018. The nominated treating doctor reiterated their comments from the earlier certificates but added that ‘further review by insureance [sic] psychaiatrist [sic] report deems them unfit and incaple [sic] of work’. It is unclear which report the nominated treating doctor is referring to.
  3. In February 2018, the treating psychiatrist reported that the worker had begun psychotherapy for alcohol dependence. The treating psychiatrist noted that the worker was ‘quite stressed today because of the insurance company and pressure from them regarding their return to work’. The treating psychiatrist stated that ‘From my assessment today I believe that the worker does not have the capacity to return to work at the moment and I would strongly recommend for them not to start any return to work program’.
  4. In February 2018, the nominated treating doctor certified that the worker had no current work capacity for any employment from February 2017 to March 2018. I infer that the nominated treating doctor meant February 2018.
  5. The treating psychiatrist, the independent medical consultant and the nominated treating doctor each indicate that the worker has a present inability arising from an injury such that they are not able to return to work in their pre-injury employment. I accept that opinion.
  6. The issue is then whether the worker is able to return to work in ‘suitable employment’ as 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:

  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 occupational rehabilitation plan under Chapter 3 of the 1998 Act, and
    4. any occupational rehabilitation services 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.
  3. I acknowledge that the recent opinions of the treating psychiatrist and the nominated treating doctor indicate that the worker has no capacity for any employment due to their psychological injury. In the absence of other recent medical opinions to the contrary, I accept their opinions and find that the worker has no capacity for any employment. I therefore find that the worker is not able to return to work in ‘suitable employment’ and has ‘no current work capacity’ under section 32A of the 1987 Act.
  4. However, even if I were to only consider the earlier opinions of the treating psychiatrist and the nominated treating doctor about the worker’s work capacity, I would still not be persuaded that they are able to return to work in ‘suitable employment’.
  5. The earlier opinions of the independent medical consultant, the treating psychiatrist and the nominated treating doctor support that the nature of the worker’s incapacity is such that, at most, they only have capacity for part-time work. Further, the earlier opinions of the treating psychiatrist and the nominated treating doctor had consistently indicated that the worker needs a supported and graduated or graded return to work program to facilitate their return to employment. I acknowledge that the independent medical consultant stated in the report dated November 2016 that further workplace rehabilitation would be ‘too little too late’. However, I prefer the opinion of the treating psychiatrist and the nominated treating doctor that it is necessary for the worker’s return to employment. The worker’s positive experience of the work trial at university supports that workplace rehabilitation can help the worker return to employment. It is unfortunate that, on that occasion, the work trial host did not offer employment.
  6. The occupational rehabilitation consultant produced a vocational assessment report dated October 2015. It suggested that employment as an administrative/clerical officer or store person was suitable for the worker.
  7. The occupational rehabilitation consultant prepared a return to work plan dated December 2015. The plan noted that ‘The worker is currently cleared for suitable duties via a graduated return to work program’. The treating psychiatrist’s emphasis on a graduated return to work program for the worker was illustrated by the following example in the return to work plan:

The treating psychiatrist reported that consideration may be given to the worker upgrading to phone/face-to-face contact with internal staff as part of a staged/graduated return to work program in one of the job areas identified. The treating psychiatrist reported that this is a task that the worker would be required to upgrade their tolerance for, as part of a graduated return to work program. Progress with these duties and upgrades would determine if this was a suitable task for the worker to perform.

  1. In other words, it was imperative that the worker was gradually exposed to even basic work duties via a structured return to work program given the nature of their psychological incapacity.
  2. The occupational rehabilitation consultant sourced a work trial at a university for the worker in research and administration support. The occupational rehabilitation consultant prepared a six-week work trial return to work plan dated April 2016. A further three-week extension plan was prepared dated June 2016. In August 2016, the occupational rehabilitation consultant emailed the insurer and stated that ‘the worker completed the Work Trial with positive feedback reported from the employer. Unfortunately, the employer is not able to offer paid employment immediately’.
  3. In September 2016, the occupational rehabilitation consultant arranged a case conference with the worker and the treating psychiatrist to discuss the outcome of the work trial. The treating psychiatrist reported that the work trial role was ‘a positive match to the worker’s medical capacity’. The occupational rehabilitation consultant confirmed that ‘there are currently no paid work opportunities at the worker’s university at the end of the placement’. The occupational rehabilitation consultant outlined the potential for future work opportunities at the worker’s university for the worker. The treating psychiatrist ‘recommended that the occupational rehabilitation consultant clarify more specific information about the actual job duties and the workplace demands in this role prior to considering if this role may be a suitable option’.
  4. In October 2016, the occupational rehabilitation consultant emailed the insurer about the worker’s job-seeking progress. The occupational rehabilitation consultant stated that ‘It has been challenging locating admin options that satisfy the worker’s medical restrictions – i.e. no direct phone or face-to-face customer contact’.
  5. In November 2016, the occupational rehabilitation consultant emailed the insurer to confirm the closure of the occupational rehabilitation services to the worker. The occupational rehabilitation consultant confirmed that the worker was independently job seeking and had secured two days per week of volunteer work.
  6. Another occupational rehabilitation provider was then commissioned to prepare an earning capacity assessment report. The report was prepared by an occupational rehabilitation consultant and is dated January 2017. It identified data entry operator, factor/process worker and dispatch and receiving clerk as suitable vocational options for the worker.
  7. The occupational rehabilitation consultant prepared a work readiness summary report dated March 2017. The report stated that the nominated treating doctor supported the worker seeking employment as a data entry operator and dispatch and receiving clerk. The nominated treating doctor stated that the worker’s work capacity would be reviewed ‘when the worker returned to employment and/or if they were able to engage in a further Work Trial’. Also ‘the nominated treating doctor highlighted that they would support a further graduated Return to Work Plan’.
  8. In September 2017, the occupational rehabilitation provider prepared a labour market research report. The occupational rehabilitation provider suggested data entry clerk and despatch and receiving clerk as suitable vocational options for the worker.
  9. In February 2018, the worker wrote to the Authority that ‘I’m not currently working except for voluntary work for 6 hours each Wednesday. Please see attached letter stating duties. I am not paid in any way for this work’. The attached letter is from a representative of the voluntary organisation and dated January 2018. The letter stated that the worker ‘has volunteered at the voluntary organisation 6 hours every Wednesday and on occasional Saturday’s since October 2016’ and that their ‘duties have included sorting and cleaning of donations, pricing stock and stock rotation’. It stated that the worker ‘has not answered the phone or had direct contact with customers or clients’.
  10. The medical information to which I have referred, the worker’s work trial and their volunteer work supports that they were able to do part-time work. However, ‘suitable employment’ means employment in work for which the worker is currently suited. The focus is on employment, not just an ability to do work. The available information supports that the worker needs a graduated return to work program to return to employment. The information before me does not adequately support that there is employment that the worker is able to return to work in via a graduated return to work program.
  11. The work trial went only part of the way to establishing that there is employment in work for which the worker is currently suited. It was only able to show that there is work that the worker can do in a real work environment via a graduated return to work program that was suited to the nature of the worker’s incapacity. However, it is significant that the ‘suitable duties’ in the return to work plan was not a real job that existed at the university or in the employment market at large. Nor did it lead to employment in a real job. While a short-term work trial of tailored tasks may be a useful indicator of a worker’s capability for work it does not equate to suitable employment. There must be information linking the work done in a work trial to a real job in the employment market. The closer that link, the more weight a work trial will hold in supporting that a worker is able to return to work in suitable employment.
  12. The vocational assessment report, earning capacity assessment report and labour market analysis report also do not adequately support that there is employment in work for which the worker is currently suited having regard to the nature of the worker’s incapacity. They provide general employment market information about the vocational options identified. They also provide some limited information from specific employers about jobs in the vocational areas identified. They do not provide probative information to support that there is a real job that the worker is able to return to in the employment market via a graduated return to work program in a work environment that is suitable for them given the recommendations of the treating psychiatrist and the nominated treating doctor.
  13. So, even on this alternative analysis I find that 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. I find that the worker has ‘no current work capacity’ under section 32A of the 1987 Act.

Continuation of weekly payments after second entitlement period

  1. Under section 38(1) of the 1987 Act, the worker’s entitlement to weekly payments of compensation ceases after the second entitlement period (after 130 weeks of weekly payments) unless the worker is entitled to weekly payments under section 38 of the 1987 Act. There is no dispute that the worker is now after the second entitlement period. I proceed on that basis.
  2. A worker with ‘no current work capacity’ must meet the requirements under section 38(2) of the 1987 Act to be entitled to weekly payments after the second entitlement period:
    • A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
  3. I have found that the worker should be assessed by the insurer as having no current work capacity. I also find that the insurer should assess the worker as being likely to continue indefinitely to have no current work capacity because, based on the available information, there is no suitable employment that the worker is able to return to work in for the foreseeable future.
  4. I find that the worker meets the requirements under section 38 of the 1987 Act to be entitled to weekly payments after the second entitlement period. The worker is entitled to weekly payments of compensation at the rate under section 38(6) of the 1987 Act from 13 February 2018 to 7 March 2018.
  5. I recommend that the insurer apply these findings to reassess the worker’s entitlement to compensation under section 38 of the 1987 Act from the date the work capacity decision was to come into effect to the date of this review.
  6. It follows that the insurer is required to continue to determine the worker’s entitlement to weekly payments of compensation after this based on the available information and the applicable legislation.

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