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Findings and recommendations on merit review 047/18

Our Reference: 047/18
Date of review: May 2018

Findings

  1. The following is the finding of the State Insurance Regulatory Authority (the Authority) on review and is to be the basis of a review decision by the Insurer.
  2. The Worker has no current work capacity.

Recommendation based on findings

  1. The Insurer is to calculate the Worker's entitlement to weekly payments of compensation in accordance with my findings above from November 2017.
  2. This recommendation is binding on the Insurer in accordance with section 44BB(3)(g) of the 1987 Act.

Background

  1. The Worker injured both of their knees during the course of their employment with the pre-injury employer.
  2. In August 2017, the Insurer made a series of work capacity decisions that resulted in a determination that the Worker's entitlement to weekly payments of compensation had ceased. The Insurer notified the Worker of its decisions by way of a letter dated the same day.
  3. The Insurer conducted an internal review of the work capacity decisions with the same outcome. The Worker was notified of the outcome of the review in October 2017.
  4. The Authority received the application for merit review in November 2017. The application has been accepted.

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'.
  3. Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.

Information considered

  1. I have considered all of the information that was provided by the parties in relation to the Worker's application for merit review. I have only referred to the information that is most relevant to my findings, in my reasons that are set out below.

Submissions

  1. In the application for merit review, the Worker has requested a review of the following work capacity decisions of the Insurer:
    • Their current work capacity.
  2. The Worker’s submissions in support of their application for merit review are summarised as follows:
    • They underwent MRI scans of both knees in October 2017, in each instance there was demonstrated progression of degenerative changes.
    • The report from treating orthopaedic surgeon dated November 2017 confirms that the Worker cannot sit or stand for more than 10 minutes at a time, and spends most of their days lying in bed.
    • In the above report, they concluded that the Worker's level of pain would preclude them from returning to the workforce. Accordingly, they have no current work capacity.
  3. In reply, the Insurer's submissions may be summarised as follows:
    • At the time of the internal review, the most recent WorkCover certificate of capacity (certificate of capacity) dated October 2017 certified the Worker as having capacity for work for 6 hours per day, 5 days per week subject to a number of restrictions.
    • It considers that the Worker has current work capacity for 30 hours per week based on the medical evidence that is available.
    • The occupational rehabilitation provider prepared a labour market research report dated April 2017, which assessed the requirements of the role of a call or contact centre Worker (paint industry customer care).
    • The labour market research report states that age would not be a barrier to employment and an employer contact indicated that they were able to accommodate employees who are able to work 30 hours per week.
    • Employer contacts confirmed that no formal qualifications are required for the role however industry experience and knowledge was highly regarded.
    • It considers that the Worker has the necessary skills and work experience for the role of a call or contact centre Worker in the paint industry.
    • The occupational rehabilitation provider reported that the functional requirements of the position were sedentary to light, with minimal physical demand required. It considers that the duties are functionally appropriate for the Worker.
    • It submits that the role of a call or contact centre worker in the paint industry is suitable employment in accordance with the definition under section 32A of the 1987 Act.
    • It considers that the Worker's level of permanent impairment is likely to be less than 20% and they do not meet any of the criteria for a Worker with high needs.
    • At the time of the internal review the Worker had current work capacity and had not returned to work for at least 15 hours per week and was not in receipt of current weekly earnings of at least $183 per week.
    • The Worker does not meet the special requirements in accordance with section 38(3) of the 1987 Act for continuation of weekly payments after the second entitlement period.
    • The Worker's payments for weekly payments of compensation must therefore be discontinued.
    • It notes that the letter from treating orthopaedic surgeon dated November 2017 states that the Worker has degenerative changes in their knees. They do not state that the diagnosis/pathology arises from the work-related incident.
    • The most recent certificate of capacity from November 2017 states that the Worker has capacity to work 30 hours per week.
  4. The Worker's legal representative has made further submissions in response to those of the Insurer as follows:
    • In its submissions (paragraph 8, page 2) the Insurer selectively quotes the opinion of the Worker's treating orthopaedic surgeon of November 2017. It conveniently ignores the most cogent aspect of their opinion, namely that the Worker is totally unfit for work.
    • It is unsatisfactory and indeed unacceptable that an Insurer on a merit review application seeks to assert that the Worker retains a work capacity of 30 hours per week when it is in possession of an opinion of the treating orthopaedic surgeon that is to the contrary.
    • The submissions made by the Insurer that the role of a call or contact centre worker in paint industry customer care line is a suitable employment option for the Worker is an untenable submission in light of the opinion of the treating orthopaedic surgeon that the Worker is totally incapacitated.

Reasons

Nature of merit review

  1. A merit review is a review of the work capacity decision of the Insurer. It involves considering all of the information that has been provided to me.
  2. I will then make findings and may make recommendations about the work capacity decision that have been referred for review.
  3. The review is not a review of the Insurer's procedures in making the work capacity decision and/or internal review decision.
  4. I am required to consider all of the information that has been provided and make findings and recommendations that are most correct and preferable.

Current work capacity

  1. The Worker has requested a review of the Insurer's decision as to their current work capacity. When conducting the review, I am to refer to the definition of "current work capacity” in the 1987 Act.
  2. "Current work capacity" and "no current work capacity" are defined in section 32A of the 1987 Act as:
  3. current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment

    no current work capacity, in relation to a worker, means· a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment

  4. I have prepared a summary of relevant medical information below.
  5. The treating orthopaedic surgeon examined the Worker in February 2015. They noted that the Worker's left knee was reported to be more symptomatic than the right knee and that there were tight hamstrings and iliotibial bands. They recommended 6 weeks of focused physiotherapy.
  6. They saw the Worker again in March 2016 and observed that there was minimal progression of degenerative changes. They observed that the Worker's anterior knee pain was in keeping with those changes and would not settle while the Worker has tight hamstrings and iliotibial bands.
  7. In March 2017, the treating orthopaedic surgeon reviewed the Worker and noted bilateral anterior knee pain remained much the same and was hopeful that they would find sedentary work.
  8. In a letter dated November 2017 to the Worker's nominated treating doctor (NTD), the treating orthopaedic surgeon indicated that:
    • Recent MRI scans showed progression of the pathology and further degenerative changes in both knees.
    • The Worker stated that their symptoms were significant and that they had difficulty sleeping at night despite medication due to the knee pain.
    • The Worker stated that they cannot sit or stand for more than 10 minutes at a time and that they spend most of their time lying in bed.
    • The Worker stated that their symptoms are too severe to allow them to return to work, even performing sedentary roles.
    • The treating orthopaedic surgeon explained to the Worker that their degree of pain and functional restriction exceed what is expected with the degree of pathology that is present on the MRI scans.
    • Due to the Worker's pain, they are unable to return to the workforce.
    • There is no role for surgical intervention for the Worker at this time.
  9. The most recent certificate of capacity that is before me is dated November 2017. The NTD has indicated that the Worker has capacity for some type of employment for 6 hours per day, 5 days per week in work where they are able to lift up to 7kg, take a 10 minute break from each hour of sitting, take a 10 minute break from each hour of standing, push and pull up to 10kg and avoid squatting. The NTD has also indicated that the Worker should avoid stairs and ladders.
  10. Certificates of capacity dating back to October 2016 have maintained this same level of capacity for the Worker, although I note that there are certificates for some months during this period that are missing from the records that have been provided to me.
  11. An independent medical consultant (IMC) examined the Worker in April 2016. They had examined the Worker on two previous occasions. Following the examination, they noted that the Worker's conduct and claimed range of flexion with their knees was inconsistent with their ability to walk normally. IMC considered that there was no physically diagnosable cause for the Worker's reported symptoms.
  12. Following the examination, IMC did not give a conclusion as to the Worker's capacity for employment but felt that it could be upgraded from full hours with lifting of up to 15kg, sitting and standing as tolerated, pushing/pulling up to 15kg, bending, twisting and squatting as tolerated and avoiding stairs and ladders.
  13. They spoke with the treating doctor who was the Worker's NTD at the time of the examination. IMC agreed with the then NTDs assessment that the Worker had capacity for some type of employment for 8 hours per day, 5 days per week where they could limit lifting to 15kg and undertake limited squatting.
  14. An orthopaedic surgeon, conducted an independent medical examination (IME) with the Worker in November 2015. Following the examination, IME observed:
  15. "The worker’s presentation was a little unusual. They had an obvious limp, though it was variable in its severity and alternated between the left and right sides. It had a shuffling component with a shortened stance phase ..."

  16. IME concluded that "there appears to be a significant psychosomatic component to the worker’s presentation. "
  17. They also noted that the Worker’s presentation at the examination could not be explained on the basis of the mechanism of the injury that was incurred by the Worker at work. They also noted that the presentation was not consistent with the results of MRI scans which did not report significant pathology in the knees.
  18. IME concluded that the Worker did have an incapacity for work arising from their injury and recommended that the Worker not participate in activities that involved repetitive kneeling, squatting, stair or ladder climbing or prolonged periods of standing or walking. They also recommended that the Worker undertake reduced hours of work for 6-7 hours per day, 4-5 days per week.
  19. Another independent medical consultant, an orthopaedic surgeon, conducted an examination with the Worker in July 2014. They noted at that time that the Worker's symptoms were fairly mild, that the Worker noticed the symptoms when going up and down stairs or ladders and that they were fairly modest on ordinary walking.
  20. They agreed with the certificate of capacity issued by the NTD at the time which apparently stated that the Worker was capable of undertaking work for 9 hours per day, 6 days per week. They noted that they would recommend that the Worker should avoid squatting and that the Worker would find stairs easier if they undertook exercises to get their patella tracking better.
  21. In response to a question from the Insurer as to factors preventing a return to pre-injury employment, they noted, "Difficult to say. Motivation may be lacking. This is of course just an impression. "
  22. Findings. The treating orthopaedic surgeon and the independent doctors have all expressed the opinion that the Worker's experience of pain is not at levels that would be expected from their degree of pathology.
  23. The independent doctors have all expressed doubts as to the Worker's actual pain experience based on presentation that is variable and inconsistent.
  24. The IMC expressed the view that the Worker would not have been able to walk normally if their movements were as restricted by pain as the Worker claimed in the examination.
  25. IME indicated that they felt that there was a significant psychosomatic element to the Worker's presentation given the lack of pathology to explain the pain they claimed to experience. They also noted that there was inconsistency in the Worker's limp which changed sides.
  26. Following their latest examination, the treating orthopaedic surgeon indicated that the Worker's level of incapacity was not a level that would be expected as the result of their pathology. In stating that the Worker is unable to return to the workforce, and they indicated that their opinion is given on the basis of the Worker's pain not on the clinical presentation or pathology.
  27. I have given the treating orthopaedic surgeon’s opinion less weight than if they had indicated that their opinion was based on the Worker's pathology and restrictions that arose from the nature of the pathology.
  28. Of the 5 doctors whose reports are available to me, only the treating orthopaedic surgeon has expressed the opinion that the Worker has no capacity for employment. I have therefore given more weight to the certification of the NTD, they have reviewed the Worker regularly over a period of at least 2 years. The reports prepared by the treating orthopaedic surgeon (including the most recent report) are addressed to the NTD and therefore I consider that they have had the benefit of the treating orthopaedic surgeon’s opinion when determining the Worker's capacity for employment.
  29. The NTD has been in a position to observe the Worker's functional capacity on numerous occasions and I consider is therefore in a strong position to have determined the Worker’s ability to return to employment. I note that they do not consider that this ability has altered in a period of over 12 months.
  30. Having very carefully weighed the information before me, I find that the Worker has capacity for some type of employment for 30 hours per week, in accordance with the functional capacity set out in the most recent certificate of capacity and listed at paragraph 28.

Suitable employment

  1. The Worker's legal representative has indicated that the Worker requires a review of the Insurer's findings as to suitable employment.
  2. "Suitable employment" is defined in section 32A of the 1987 Act as:
  3. 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 448}, 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

    (iv)such other matters as the WorkCover Guidelines may specif y, and

    regardless of:

    whether the work or the employment is available, and

    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.

  4. Overview of age, education, skills and work experience. The Worker is 57 years old. They finished high school in 1976 and has worked mainly in labour intensive roles in the paint industry and the construction industry.
  5. The Worker completed their painting trade in 1981 and steel fixing in 1985. Since the time of their injury, the Worker has also undertaken basic skills training in MS Word and Excel and has completed a Certificate Ill in business.
  6. There is a transferable skills assessment report that has been prepared by the rehabilitation consultant. The report sets out the Worker's previous work experience as well as some of their reported duties and then other duties that the Worker "is likely to have performed" based on a job guide from the Department of Education.
  7. The report is problematic as I am to have regard to the Worker's actual skills rather than the skills for a generic job role according to a guide produced by a government department.
  8. Labour market research report. There is a labour market research report that was prepared by the rehabilitation consultant. Although there are previous reports that have suggested suitable employment options for the Worker, I will refer to this report as it is the most recent report available and I therefore consider that it is likely to provide the best available information as to employment within the current labour market.
  9. The rehabilitation consultant has identified three roles that they consider would be suitable for the Worker. These are:
    • Call or contact centre worker (paint industry customer care line)
    • Sales representative (paint and home decoration supplies)
    • Technical representative (painting supplies)
  10. Call or contact centre worker (paint industry customer care line). The rehabilitation consultant contacted an employer of contact centre workers in the paint industry to determine the requirements of the role. The employer indicated that contact centre workers were not required to have formal qualifications but that industry experience and knowledge were highly regarded.
  11. Candidates for the role required effective communication skills and the ability to deal with customers over the phone. The duties included answering customer queries in relation to colour design and mixing. The main physical requirements of the role were to sit and answer phone calls. The employer indicated that it was possible to take regular stretch breaks from sitting.
  12. The Worker completed their painting trade in 1981. The Worker has undertaken work in the painting trade for paid employment, along with other manual employment since 1976 up until the time of their injury. I am satisfied that the Worker's work experience has provided them with the requisite subject matter knowledge to undertake the role of a contact centre worker in the paint industry.
  13. I acknowledge that the Worker has no experience working in a call centre. As part of their most recent role with the pre-injury employer, the Worker was responsible for:
    • Liaising with customers.
    • Quoting and pricing.
    • Planning jobs.
  14. The information above is taken from the "duties" that it appears the Worker reported they undertook in the pre-injury role rather than the generic duties that were included by the rehabilitation consultant from the Department of Education job guide.
  15. I am therefore satisfied that the Worker has experience with customer interactions regarding painting.
  16. The advertisement for the role with the above employer also indicated the following duties were required:
    • Deal with customer enquiries via email and telephone.
    • Perform administrative duties relating to colour design service, Training Academy and trade painter service.
    • Accurately mix and tint paint
    • Comply with safety standards
    • Maintain a database
  17. I am satisfied based on the training that the Worker has received and correspondence that has taken place between them and the occupational rehabilitation provider that the Worker is able to use email and that they have at least the basic computer skills required such that the Worker would be able to learn to use an in-house database with on-the-job training.
  18. I am concerned, however, by the requirement to perform administrative duties relating to colour design service, Training Academy and trade painter service and accurately mix and tint paint.
  19. I have concerns in relation to the administrative duties required of candidates in this role. While I am confident that the Worker can carry out basic computer tasks and that they would be capable of being trained in the use of a database, I am not satisfied that they would be capable of undertaking complex administrative tasks, especially in the area of a training academy. Administrative tasks may be very simple such as recording names of participants in a document and photocopying, which I am satisfied that the Worker could do, however, they may also be very complex such as being required to coordinate and schedule training courses, compile and email pre-course work and so on. I am not satisfied that the Worker's level of skills and experience are such that they would be capable of undertaking tasks at the more complex range of the spectrum.
  20. Without further detail as to the nature of the administrative tasks that would be required of a candidate in the role, I am not satisfied that work as a contact centre worker (paint industry customer care line) is work to which the Worker is suited when having regard to their skills and work experience.
  21. There is also a requirement to mix paint. I understand from other information in the labour market research report that a tin of paint weighs approximately 15kg. I have found that the Worker may carry up to 7kg only. I acknowledge that the employer has indicated that the job is largely undertaken in a seated position and that they do not mention paint mixing requirements. Regardless of this, the information has been included by the rehabilitation consultant and I am to have regard to all of the available information. Without positive confirmation that the Worker would not be required to mix paint as part of their duties or that the paints do not weigh greater than 7kg, I am not satisfied that the role of a contact centre worker (paint industry customer care line) is work to which the Worker is suited when having regard to the nature of their incapacity.
  22. The NTD has supplied approval for the Worker to undertake the above role. The approval is dated April 2017. The information that was provided to the NTD differs from the information that is contained in the labour market research report and did not include information such as the weight lifting requirements for the jobs. I have therefore given very little weight to the NTD’s approval of the roles as suitable employment for the Worker as I do not consider that they were provided with all of the relevant information required to provide that approval.
  23. Having weighed the information carefully, I find that on balance I am not satisfied that work as a contact centre worker (paint industry customer care line) is suitable employment for the Worker when having regard to the nature of their incapacity.
  24. Sales representative (paint and home decoration supplies) and technical representative (painting supplies). The rehabilitation consultant has indicated that each of these roles has a requirement for lifting weights of up to 15kg. I have found that the Worker is not able to lift weights of more than 7kg. Each of the roles requires a considerable amount of standing when talking with clients and although employers have indicated that employees are able to sit when driving or not working with clients, I am not satisfied that the Worker would be able to have 10 minutes of rest for every hour of standing where they may be with customers for periods of longer than 60 minutes.
  25. On the basis that I am not satisfied that either the role of sales representative (paint and home decoration supplies) or technical representative (painting supplies) is employment to which the Worker is suited when having regard to the nature of their incapacity, I am not satisfied that the role is suitable employment for the Worker, having regard to the definition under section 32A of the 1987 Act. While I have considered all of the relevant matters in the definition, I consider that the lack of functional suitability of the role renders it unsuitable.
  26. Findings as to work capacity. For the reasons outlined above, I find that the Worker has no current work capacity as they have 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.

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