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Findings and recommendations on merit review 041/18

Our Reference: 041/18
Date of review: October 2017

Findings

  1. Caravan park manager does not constitute 'suitable employment' for the Worker as defined by section 32A of the Workers Compensation Act 1987 (the 1987 Act).
  2. The Worker's pre-injury average weekly earnings do not include an amount for a use of a motor vehicle non-pecuniary benefit.

Recommendation

  1. The Insurer's review decision must apply the above findings to determine the Worker's entitlement to weekly payments of compensation from June 2017 to date.
  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 employed by the pre-injury employer and sustained a work­related injury. They have receiving weekly payments of compensation for incapacity for work as a result of the injury.

    In June 2017, the Insurer decided to reduce the amount of the Worker's weekly payments of compensation to $0.00. This was based on the Insurer's decision that caravan park manager constituted suitable employment for the Worker and that they were able to earn $1,406 per week in suitable employment.

  2. The Worker referred that decision for internal review. The Insurer affirmed its original decision. The Worker received notice of the internal review decision in October 2017.
  3. The application for merit review was received by the Authority in October 2017. It was made within time under section 44BB(3)(a) of the Workers Compensation Act 1987 and in the approved form.

Legislation

  1. The legislative framework governing work capacity decisions and reviews is contained in the:
  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 has indicated in their application for merit review that they want the following decisions of the Insurer reviewed by the Authority:
    • decision about their current work capacity
    • decision about what constitutes suitable employment for them
    • decision about the amount they are able to earn in suitable employment
    • decision about amount of their pre-injury average weekly earnings
  2. In support of their application, the Worker submits:
    • They are not capable of working as a caravan park manager primarily due to their lack of work experience. They have not been helped by occupational rehabilitation provider to secure work experience as a caravan park manager.
    • The Insurer's calculation of their ability to earn in suitable employment is wrong. Based on their experience and inquiries, the yearly salary is closer to $35 ,000 for an individual caravan park manager.
    • They do not agree with the Insurer's calculation of their pre-injury average weekly earnings (PIAWE). They used to have a company vehicle (a dual cab utility 4x4) which they were allowed to use for private purposes. The FBT value of that non-pecuniary benefit has not been included in the PIAWE calculation.
  3. The Insurer submits in reply:
    • The role of caravan park manager is appropriate suitable employment for the Worker, based on their previous skills and experience.
    • The Worker was employed by the pre-injury employer and they have experience in management and leadership, developing and motivating teams and highly developed customer service skills.
    • The Worker has completed training with the Australia Caravan Park Training School in order to obtain work in this area.
    • The occupational rehabilitation provider contacted a number of employers who were hiring caravan park managers. The Worker has demonstrated the skills required by the employers contacted, in their pre-injury role. The employers contacted did not require a couple for the role so the Worker's wife is not required to work with them.
    • The occupational rehabilitation provider has been sourcing a potential work trial for the Worker for the caravan park manager role and continues to look for a role within the Worker's local area. However, the Worker has been travelling around Australia for an extended period of time and has not been available to take up this opportunity should a work trial be located.
    • The Worker is able to earn $37 per hour in suitable employment as a caravan park manager based on the information provided by employers contacted as part of the vocational assessment report.
    • The amount of the Worker's pre-injury average weekly earnings is based on information received from the pre-injury employer dated June 2016.

Reasons

Nature of merit review

  1. This is a merit review of the decisions of the Insurer that the Worker has referred to the Authority for review under section 44BB of the 1987 Act. I must make findings on the most correct and preferable decisions based on the information before me.

Current work capacity and suitable employment

  1. Section 32A of the 1987 Act defines 'current work capacity' and 'no current work capacity':
  2. 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

  3. There is no dispute before me about the extent of the Worker's present inability arising from an injury. The only certificate of capacity before me is dated September 2017. The Worker is certified with capacity for 'some type of employment' from September 2017 to October 2017 for 38 hours per week. The limits on their work capacity are stated to be 'currently unable to cope with the responsibilities and pressures of project management' and 'should avoid project management work due to its time pressures and complexity'.
  4. It is also not in dispute that the Worker has a present inability arising from an injury such that they are not able to return to their pre-injury employment. The certificate of capacity before me plainly states that the Worker is not able to return to such employment.
  5. The issue in dispute about the Worker's current work capacity 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,means employment in work for which the worker is currently suited:

    (a) having regard to:

    (i) the nature of the worker 'sincapacity and the details provided in medical information including, but not limited to,anycertificate of capacity supplied by  the  worker (under section 448}, and

    (ii) the worker 'sage, education, skills and work experience, 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 'spre-injury employment,  and

    (iv) the worker's place of residence.

  7. This in turn raises the issue of whether caravan park manager constitutes suitable employment for the Worker. The Insurer's decision about the Worker's current work capacity and their ability to earn in suitable employment hinges on this issue.
  8. The Worker has submitted that caravan park manager does not constitute suitable employment for them, primarily because they lack sufficient work experience.
  9. The occupational rehabilitation provider produced a vocational assessment report dated February 2017. The report gives the following job description for caravan park manager:
  10. Caravan park and camping ground managers organise and control the operations of caravan parks and camping grounds to provide accommodation and leisure activities.

  11. On its face, this brief description suggests that a caravan park manager would require a reasonably sophisticated level of working knowledge, skill and experience to organise and control the operations of caravan parks.
  12. The report then details 'employer feedback' about caravan park manager employment. This feedback is presented as summary of information reported to it by three unnamed individuals, each from a different organisation. This type of indirect information is inherently unreliable. It is inevitable that the information is shaped by the manner in which questions are asked, how responses are given, and then how that information is selected, edited and framed in a stylised document. In this case, the manner in which the occupational rehabilitation provider elicited the information from these individuals is unclear. There is no way to test if it's summary is an accurate or complete picture of what was actually reported by the individuals. The summaries themselves lack sufficient detail. For example, various tasks are listed in bullet form but the system of work underpinning those tasks is not described. Thus, it only gives a superficial insight into what the work actually involves. I have considerable doubt about the reliability of the employer feedback information in the vocational assessment report.
  13. Further, some of the information weighs against the view that it is suitable employment for the Worker. For example, the second employer contacted for feedback indicated that the key skills and experience for that job included an 'ability to manage prospective capital development (project management)'. On its face, such work is unsuitable for the Worker having regard to the nature of their incapacity and the details in the certificate of capacity before me. Yet, the vocational assessor concluded that the Worker was a suitable match for the role.
  14. I am also concerned that the report states under the heading 'Average Weekly Earnings' that '2 positions were advertised on seek.com.au, mycareer.com.au, jobsearch.gov.au, and careerone.com.au in the surrounding local area. 24 positions were advertised on the job search sites, noted above, nationally. Yet, no job advertisements are actually provided with the report. In my view, the omission of that obviously relevant information further undermines the weight of the report.
  15. Overall, I have too many doubts about the reliability of the information in the vocational assessment report to put significant weight on it.
  16. In July 2017, the occupational rehabilitation provider produced a 'Status Report - New Employer' report. It explains that the Worker was being provided with job-seeking assistance by it. The report gives a summary of the 'cold canvassing' attempts to secure employment as a caravan park manager. The report indicates that 45 employers were contacted and, while a variety of reasons were given, ultimately no positive responses were received.
  17. In August 2017, the occupational rehabilitation provider produced a further 'Status Report - New employer' report. The report states that 'The Worker had an interview for a Caravan Park Manager in August 2017, however advised they were unsuccessful in this role due to having no relevant experience '. The report further states that 'It will continue canvassing on the Worker's behalf for Caravan Park Manager roles'.
  18. In my view, the status reports add weight to the Worker's submissions that:
    • 'I have made enquiries regarding Caravan Park Manager roles and have been informed I would need to have some work experience before being considered for these roles'.
    • 'I have been applying for Assistant Manager roles in caravan parks. I have applied for over 30 jobs and had no success'.
  19. The Worker is age 60. They left school at age 15. In the 1970s they did some further education and completed a sheet metal apprenticeship. Their skills and work experience are in project management and the sheet metal work industry. They do not have work experience as a caravan park manager or in caravan parks generally. They have repeatedly applied for employment in caravan parks without success. The occupational rehabilitation provider has provided occupational rehabilitation services specifically targeted to try to secure the Worker some work experience at caravan parks. However, those efforts have also been unsuccessful. In my view, these factors are consistent with the Worker's submission that they currently lack sufficient work experience to be suited to employment as a caravan park manager.
  20. I acknowledge that the Worker recently completed a Statement of Attainment with the Australian Caravan Park Training School in the following accredited units:
    • Source and use information on the holiday park and resort industry
    • Interact with customers
    • Participate in safe work practices
    • Communicate in the workplace
    • Source and present information
    • Use a computerised reservations or operations system
    • Organise and complete daily work activities
  21. The Worker was also awarded a Certificate of Attendance for attendance at the Australian Caravan Park Training School in May 2017.
  22. In my view, these certificates are consistent with the Worker's submission that 'I did a one week training course which gave an overview of how caravan parks are run'. I am not persuaded that such education, without direct work experience, is enough to support that caravan park manager is employment in work for which the Worker is currently suited.
  23. I find that caravan park manager does not constitute 'suitable employment' for the Worker as defined by section 32A of the 1987 Act .
  24. As the Insurer's decision about the Worker's current work capacity and its decision about their ability to earn in suitable employment hinged on caravan park manager constituting suitable employment for the Worker, those decisions cannot stand.
  25. I recommend that the Insurer determine the Worker's entitlement to weekly payments of compensation from the date of its work capacity decision until now on the basis that caravan park manager does not constitute suitable employment.
  26. It follows that the Insurer is required to make a 'review decision' as defined by section 44BA of the 1987 Act to give effect to that recommendation.

Pre-injury average weekly earnings

  1. The next issue concerns the Insurer's decision about the amount of the Worker's pre-injury average weekly earnings (PIAWE) . Specifically, the Worker submits that they 'used to have a company vehicle (a dual cab utility 4x4) which I was allowed to use for private purposes' and that the 'FBT value of that non-pecuniary benefit has not been included in the PIAWE calculation'.
  2. The term 'non-pecuniary benefits' is defined under section 44F of the 1987 Act. A 'use of a motor vehicle’ benefit provided in respect of a week  to a Worker  by the employer  for  the performance of work by the Worker is a non-pecuniary benefit under section 44F(1)(b).
  3. Non-pecuniary benefits may be included in a Worker's PIAWE as 'ordinary earnings' under section 44E(1)(a)(iii) or (b)(iii) of the 1987 Act.
  4. However, in this case, there is insufficient information before me to support that a use of a motor vehicle non-pecuniary benefit should be included in the Worker's PIAWE.
  5. The Worker has not produced any information to support their assertion that they were provided with a use of a motor vehicle non-pecuniary benefit.
  6. The Insurer has produced a 1file note' of a telephone conversation between its representative and the Worker. The date of the telephone call is recorded as August 2017. The Insurer's representative reportedly told the Worker that it 'relied upon the form submitted by their employer at the time of the inj[ury]' to calculate their PIAWE.
  7. Before me is a 'Calculating pre-injury average weekly earnings' form completed by the pre-injury employer. The form is signed and dated June 2016. They declare that their role is 'financial controller’. I infer that they are the financial controller for the pre-injury employer. The financial controller indicates in the form that the Worker had ordinary gross earnings per week of $1,867.73 based on 38 ordinary hours of work per week. The form has a section for non-pecuniary benefits, including use of a motor vehicle benefits. That section is left blank. The declaration section at the end of the form that they signed states:
  8. I have read the information provided in this form. I declare that the information I have supplied in this form, and any attachment to this form, is true and correct and that no information has been suppressed or omitted from this report to the best of my knowledge. I understand that the making of a false or misleading statement concerning a claim is punishable by law and that I may be prosecuted.

    (Emphasis added)

  9. I infer from the wording of that declaration, and how the form was filled out (with certain sections completed and others left blank), that the financial controller meant to indicate that the Worker was not provided with any non-pecuniary benefits.
  10. There is an absence of information to support the Worker's assertion. However, there is information that goes against the Worker's assertion. On balance, I am not persuaded on the information before me that the Worker was provided a non-pecuniary benefit of a use of a motor vehicle as defined by section 44F( l) of the 1987 Act.
  11. I find that the Worker's PIAWE does not include an amount for a use of a motor vehicle non-pecuniary benefit.

Merit Reviewer
Merit Review Service
Delegate of the State Insurance Regulatory Authority