Our Reference: 030/18
Date of review:
Findings on review
- The following are findings made by the State Insurance Regulatory Authority (the Authority) on review.
- The Worker is able to return to work in suitable employment.
- The Worker has current work capacity.
- The vocational option of Receptionist is suitable employment for the Worker.
- The Worker is able to earn $557.06 per week in suitable employment.
Recommendation based on findings
- The Authority may make a binding recommendation to the Insurer based on the findings of this merit review under section 44BB(3)(e) of the Workers Compensation Act 1987 (the 1987 Act).
- The Authority makes no recommendations for the reasons below.
- The Worker injured their right ankle while working as a Merchandiser/Supervisor for the pre-injury employer. After a period of working suitable duties on reduced hours, the Worker stated that their last day of work was XX September 2016.
- The Insurer accepted liability for the injury and paid weekly payments of compensation to the Worker.
- The Insurer made a number of work capacity decisions in April 2017. The outcome of these decisions was the reduction of the Worker’s weekly payments of compensation to $0.00 under section 37(3) of the 1987 Act. This was to come into effect in August 2017.
- On application by the Worker, the Insurer undertook an internal review and made a decision in June 2017. The internal review decision resulted in essentially the same outcome as the original work capacity decision.
- The application for merit review was received by the Authority in July 2017. I am satisfied the application has been made within 30 days, 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 and guidelines
- The legislative framework governing work capacity decisions and reviews is contained in the:
- Section 43 of the 1987 Act describes a “work capacity decision”.
- Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.
- The information that I have considered in making this decision is the information attached to the application for merit review and the Insurer’s reply and any other information that has been supplied by the parties, which I am satisfied has been exchanged between them.
- The Worker relies on submissions attached to the application and the submissions dated May 2017 previously relied upon in the application made to the Insurer for internal review. The Worker also relies on a number of documents in support of their application. These will be addressed in my reasons below.
Nature of merit review
- 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.
- Noting the Worker’s submissions, I consider that they have referred the following decisions to the Authority for review:
- A decision about a worker’s current work capacity (section 43(1)(a)).
- A decision about what constitutes suitable employment for a worker (section 43(1)(b)).
Current work capacity and suitable employment
- The Worker submits that the work capacity decision (and internal review) was based mainly on their physical performance at the time of the evaluation by an occupational rehabilitation provider. They feel that the reports from their physiotherapist, psychologist and pain management specialist were not taken into consideration at all.
- I have read and considered the information that the Worker refers to. This includes the following reports:
- the occupational rehabilitation provider 'Physical Work Performance Evaluation' ('PWPE') dated February 2017
- the pain management specialist from a pain clinic dated May 2017
- the physiotherapist, dated May 2017
- the psychologist dated May 2017.
- I have also had regard to the various WorkCover NSW Certificates of Capacity issued by the Worker’s two treating doctors.
- The information from the treating doctors and PWPE indicate that the Worker has the capacity for some type of employment working their pre-injury hours (40 hours per week).
- PWPE stated:
“Tolerance for the 8-Hour Day: Based on the individual task scores in Dynamic Strength, Position Tolerance and Mobility, [the Worker] is able to tolerate the Light level of work for the 8-hour day/40-hour week. Please note that the tolerance for the 8-hour day was significantly influenced by [the Worker’s] self-limiting behaviour and indicates their minimal rather than their maximal ability.”
- The Worker was referred to a pain management program at the pain clinic in early 2017. They were reviewed in May 2017 by the pain management specialist who stated that the Worker reported a “marginal improvement in their pain levels”. In the sub-heading ‘Return to Work’, the pain management specialist stated:
- In May 2017, the physiotherapist stated that the Worker’s “response to the pain management program has been promising with their standing and walking tolerance improving significantly” and that the program “should assist the current occupational rehabilitation process”.
- In May 2017, the psychologist stated that the Worker appears easily overwhelmed at the prospect of learning new information, exposure to unfamiliar work environments and has an overall reduced sense of self-worth following prolonged job detachment. Their presenting emotional state of distress and instability may hinder their ability to successfully secure new employment.
- The psychologist noted that the Worker had “participated in four psychological treatment sessions to date with reasonable progress”. He recommended that the Worker “continue with pain management until their condition stabilises and they transition into self-management”.
- The information from the Worker’s treating doctors and the evaluation from PWPE certainly supports a finding that they have the capacity to return to full time employment. However, I am persuaded by the information from their physiotherapist, psychologist and pain management specialist that the Worker is still responding to treatment (both psychological and with pain management). It is also a relevant consideration that the Worker was working suitable duties on a part time basis at the time they were made redundant.
- The preferable finding in my view would be in line with the pain management specialist’s opinion, namely that the Worker has current work capacity but that their return to work should not be full time, at least not initially. I note that the Insurer found that the Worker’s pre-injury hours were 23 hours per week and I find that this would be their current work capacity and consistent with a graduated return to full time work.
- In relation to the Worker’s functional tolerances for work, I am guided by the findings of the PWPE, namely the ‘Minimal Overall Level of Work’ which includes specific abilities detailed in the Task Performance Table (see page 3). In summary, these refer to a reduced capacity for lifting, pushing, pulling standing, stooping, kneeling, stair climbing and overhead work. I note that the findings of PWPE largely mirror the tolerances specified in the WorkCover NSW Certificates of Capacity.
- I therefore find that the Worker has the capacity to work 23 hours per week in some type of employment with the functional tolerances as stated in the PWPE.
- Section 32A of the 1987 Act defines “current work capacity” as:
“[The Worker] has been recommended to return to full-time work even in their current situation where they still has persistent pain and inability to wear closed shoes due to significant sensitivity in their right foot and ankle with their mood disorder not being appropriately addressed. It would be best to allow them to gradually return to work. This may be done through a rehab provider, which I gather they have currently engaged with.”
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 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
- There is no dispute that the Worker is unable to return to their pre-injury employment as a Merchandiser/Supervisor at the pre-injury employer.
- 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:
- The occupational rehabilitation provider provided a vocational assessment report dated March 2017. The following employment options were recommended as “suitable employment”:
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.
- Customer Service Officer
- Fleet Controller
- The role of Receptionist is described as being predominately desk-based which is “seated in nature”. The Worker is unrestricted in their sitting tolerance from both the information in the WorkCover NSW Certificates of Capacity and the PWPE report. While there will be occasions where they will need stand and walk about, for example when distributing correspondence and photocopying, there are no duties that will require squatting, driving, stair climbing, lifting or carrying above 9kg. In my view, the duties associated with standing and walking will allow the Worker to alternate postures which is consistent with the Worker’s ability to only perform these movements “occasionally” as mentioned in PWPE’s Task Performance Table.
- I note that the treating doctor approved this role in March 2017 which, in my view, adds further weight to the role being suitable given that the treating doctor is the nominated treating doctor of the Worker.
- I am therefore satisfied the role of Receptionist is suitable employment for the Worker having had regard to the nature of their incapacity.
- In relation to education required in the role, I note that there are no formal qualifications required and the employer contacts in the vocational assessment did not state that the Worker required formal retraining.
- In relation to skills, the Worker reportedly stated to the occupational rehabilitation provider that they possessed above average English literacy skills for reading, writing and speaking. This was confirmed by the occupational rehabilitation provider through the Worker’s completion of the pre-assessment questionnaire; their clear and efficient communication in the assessment; and their employment history. As the role of Receptionist involves duties associated with answering telephone calls and speaking with clients and the public, I am satisfied the Worker’s level of English literacy is at the requisite level required of the role.
- The role also requires the performance of clerical tasks, which include computer use such as word processing. The Worker reportedly stated to the occupational rehabilitation provider that they possessed “average” computer skills associated with Internet, email and Microsoft Word. Specifically, they stated that they are able to open Word, complete a simple letter and print the document. While they could not complete a spell check and grammar check, format the document or save in a folder or USB, I note that all three employer contacts indicated that only basic computer literacy (email, Internet and Microsoft Word) was required. I am satisfied that the Worker possesses the requisite computer skills to be suited to the role.
- In relation to work experience, although the Worker’s recent employment (the pre-injury employer and another employer) have predominately been customer service roles, they also performed administrative tasks such as invoicing, process orders and credit. Moreover, from 1994-2005, they were a business owner and did bookkeeping and invoicing. In my view, the Worker’s work experience supports the role of Receptionist as being suitable employment.
- The Worker is currently aged 47. I do not consider age to be a factor working against the suitability of the role.
- An occupational rehabilitation provider prepared a return to work plan as part of the Worker’s rehabilitation. In May 2017, the occupational rehabilitation provider confirmed that the Worker had been attending the occupational rehabilitation provider’s office fortnightly for Job Search Skills Training and had completed modules 1-10. The occupational rehabilitation provider noted that a mock interview would be conducted in May 2017. I am satisfied that the Worker has been provided with occupational rehabilitation services to enable them to independently job seek for the role of Receptionist.
- Therefore, having considered the above matters and the balance of considerations in the definition of suitable employment, I am satisfied that the employment option of Receptionist is suitable employment for the Worker.
- I find 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 but is able to return to work in suitable employment. I find that the Worker has current work capacity in accordance with the definition in section 32A of the 1987 Act.
- I note that it is not necessary that I determine whether the roles of Customer Service Officer or Fleet Controller also constitute suitable employment for the Worker, in light of my findings below.
Entitlement periods for ongoing weekly payments
- The following provisions of the 1987 Act provide the basis for determination and calculation of a worker’s weekly payments entitlement:
- Weekly payments in the first 13 weeks are to be determined in accordance with section 36 of the 1987 Act (“the first entitlement period”);
- Weekly payments in weeks 14–130 are to be determined in accordance with section 37 of the 1987 Act (“the second entitlement period”); and
- Weekly payments after the second entitlement period (after week 130) are to be determined in accordance with subsections 38(6) or (7), but only if the special requirements for continuation of weekly payments after the second entitlement period are met in accordance with section 38 of the 1987 Act.
- The Insurer’s reply to the application for merit review states that the Worker has received a total of 96 weeks of weekly payments.
- At the time of this merit review decision, I find that the Worker’s entitlement to weekly payments of compensation currently falls in the second entitlement period (weeks 14-130) and is to be calculated in accordance with section 37(3) of the 1987 Act, as follows:
(3)The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:
(a)(AWE × 80%) − (E + D), or
(b)MAX − (E + D), whichever is the lesser.
Calculation of entitlement
- “AWE” means the worker’s pre-injury average weekly earnings. In its work capacity decision, the Insurer calculated this figure to be $575.81 per week. The Worker does not dispute this figure.
- Accordingly, I find that the amount of $575.81 will be used as the Worker’s “AWE” for the purposes of the above formula under section 37(3) of the 1987 Act.
- “E” is described in section 35 of the 1987 Act as:
- The occupational rehabilitation provider contacted three employers in relation to Receptionist roles. The wage information disclosed based on a 23 hour week was $598.00, $576.61 and $557.06 per week. I consider the Worker’s ability to earn to be on the lower end given that they have never worked in the role.
- I find that the amount the Worker is able to earn in suitable employment to be $24.22 per hour or $557.06 based on a 23 hour week. As the Worker is not presently working, I am satisfied the figure of $557.06 represents their earnings after the injury (or “E”).
- “D” is the amount of any non-pecuniary benefits which in the Worker’s case is nil.
- “MAX” means the maximum weekly compensation amount. MAX does not apply in this case because the rate of (AWE x 80%) – (E + D) results in a lesser calculation.
- In accordance with section 37(3) of the 1987 Act:
- I therefore find that the Worker is entitled to weekly payments of compensation in the amount of $0.00.
- I have ultimately reached the same conclusion as the Insurer. A recommendation to the Insurer is therefore not necessary. The work capacity decision to discontinue the Worker’s weekly payments of compensation from XX August 2017 stands.
E means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:
(a) the amount the worker is able to earn in suitable employment,
(b) the workers current weekly earnings.
$575.81 x 80% - $557.06
= $460.64 - $557.06
Merit Review Service
Delegate of the State Insurance Regulatory Authority