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Findings and recommendations on merit review 053/18

Our Reference: 053/18
Date of review: April 2018

Findings on review

  1. The following are the findings of the Authority on review and are to be the basis of a review decision by the Insurer.
  2. The Worker had current work capacity between the dates of January 2017 and October 2017.
  3. The Worker’s role with their pre‐injury employer as an apprentice mobile plant mechanic undertaking suitable duties was suitable employment for the period January 2017 to October 2017.
  4. The Worker’s ability to earn in suitable employment was their actual earnings with their pre‐injury employer for the period January 2017 and October 2017.
  5. From October 2017 and ongoing, the Worker had 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 set out above for the period from January 2017 and ongoing.
  2. The recommendation of the Authority is binding on the Insurer in accordance with section 44BB(3)(g) of the Workers Compensation Act 1987 (the 1987 Act.

Background

  1. The Worker injured their right knee in the course of their employment as an apprentice mobile plant mechanic with their pre‐injury employer ACME Pty Limited. The accepted date of injury is  February 2015.
  2. Following the injury, the Worker continued working in suitable duties. They subsequently had surgery on the knee in 2016 but continued to have ongoing issues with the knee. They were not able to return to their full pre‐injury role.
  3. In January 2017, the Insurer made a series of work capacity decisions and determined that the Worker’s entitlement to weekly payments of compensation was nil.
  4. The Worker applied for an internal review of the work capacity decisions. The application for internal review was undated but the Insurer conducted the internal review and wrote to the Worker with the outcome in February 2018. The internal reviewer made the same decisions as the original decision maker.
  5. The Insurer later made a new work capacity decision and found that from February 2018 the Worker had no current work capacity from February 2018.
  6. The Authority received the application for merit review in March 2018. 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:
    • A decision as to their current work capacity.
    • A decision as to what is suitable employment for them.
    • A decision as to the amount that they are able to earn in suitable employment.
    • A decision about the application of indexation under the 1987 Act to their PIAWE.
  2. The Worker’s submissions in support of their application for merit review are summarised as follows:
    • Their weekly benefits should be reinstated and they  should be provided with rehabilitation assistance to identify and seek suitable employment within their capacity, not their pre‐injury role, which is unsuitable and unsustainable.
    • The Insurer has identified their pre‐injury role as being suitable employment, however if they were able to perform this role they would have a pre‐injury duties certificate.
    • While they did remain employed with their pre‐injury employer and completed their apprenticeship, they were performing suitable duties only and they struggled with those.
    • If they returned to their pre‐injury role they would be expected to perform more physical tasks with another employer to complete all aspects of the role.
    • The Insurer obtained a report in which two employers were contacted. Both described roles that exceed their physical abilities.
    • They do not believe that they are able to work or earn in the role that has been identified as being suitable for them and a return to the role has not been supported by their nominated treating doctor or their specialists who were not contacted by the Insurer.
    • They are awaiting further specialist review as it is likely that they will require further surgery in the near future and believes that their benefits should be continued to be paid until such time as they have recovered and increased their capacity to find and perform a suitable role.
  3. The Worker’s legal representative has also made the following submissions on their behalf:
    • The work capacity decision and subsequent review undertaken by the Insurer have found that they are able to work in suitable employment as an apprentice mobile plant mechanic. This is the Worker’s pre‐injury role and therefore cannot be considered suitable employment in accordance with the definition under section 32A of the 1987 Act.
    • The Worker is not currently in receipt of weekly benefits. They have supplied their Centrelink Medical Certificate, which the Insurer declined to consider when reviewing the Worker’s work capacity on the basis that the certificate was not a certificate of capacity.
    • The Worker was denied a fair and proper review given this refusal of the Insurer to consider evidence that provided information. They are able to provide information that is not just limited to certificates of capacity.
    • The Worker has previously outlined their employment history including their education, skills and work experience to the insurer. This confirms that the Worker’s experience within the vocation of an apprentice plant mechanic and associated industry is limited to undertaking of an apprenticeship with their pre‐injury employer who has since terminated their employment.
    • Prior to the cessation of this employment, the Worker had been working for this employer on selected duties only due to their physical inability to perform the full catalogue of duties required of the role.
    • While the Insurer attempted to locate employers, who offer the same selection of duties, it is noted that the duties communicated by these employers are inconsistent with the Worker’s certified capacity, including the need to squat and lift frequently.
    • The legal representative considers that an accommodation of restrictions would place the Worker in a repeated, unsustainable scenario of performing suitable duties rather than returning them to suitable employment in keeping with the definition specified in section 32A of the 1987 Act.
    • As the employment identified does not meet the definition of suitable employment, they consider that there are no suitable employment options identified for the Worker and that their ability to earn in suitable employment is nil.
    • A full description of the Worker’s pre‐injury role was not included in the original work capacity decision. The Insurer has referred to a return to work plan signed by “Dr XX in XX month/year” in support of supposed medical endorsement for them to work as an apprentice plant mechanic for their pre‐injury employer. They do not have a copy of this plan and notified the Insurer of this at the time of seeking the internal review. To date they has not received a copy.
    • It has not been proven therefore that the select range of tasks the Worker performed within the context of a suitable duties arrangement would constitute an ability to work as an apprentice plant mechanic.
    • There is also no evidence that a practitioner who is familiar with the Worker’s condition and capacity for work would support this plan.
    • There does not appear to be any plan reviewed or endorsed by the Worker’s nominated treating (NTD) who would be the most appropriate medical party from whom to seek approval.
    • It is also noted that the Worker does not possess a pre‐injury duties certificate; rather they have been supported through a difficult period of attempting to sustain suitable duties within their pre‐injury place of employment. This does not constitute the ability to perform their pre‐injury role elsewhere.
    • The Worker was terminated from their employment in 2017. Since the cessation of their employment, the Insurer has not provided them with any form of occupational assistance in aid of their obtaining work with a new employer. The Worker has concerns regarding their ability to find work following their injury and requires assistance from an occupational rehabilitation provider in order to identify suitable employment goals, education in regard to injury disclosure and interview skills and assistance in updating their resume.
    • As the Worker has not been provided with any such rehabilitation assistance it is unreasonable to consider that they has the ability to obtain a new role or identify employment which would be suitable for them to pursue.
    • The Guideline for Claiming Workers Compensation Benefits states that “Insurers should consider the principles of procedural fairness, including fair notice, when making any decision which may affect a worker’s rights or interests”.
    • In considering the Worker’s work capacity in the context of their internal review, the Insurer refers to an independent medical examination (IME) report from independent medical examiner. Despite numerous requests by both the Worker and on their behalf, the Insurer is yet to provide a copy of the IME report to the Worker, relying instead on excerpts contained within their own publication. This presents an insurmountable barrier to the Worker in establishing what has been reported to the Insurer in respect of their capacity from an independent source and does not allow the Worker a reasonable right of response not the ability to self‐reflect on their potential capacity, given they have only been able to view the excepts favoured by the Insurer.
    • The Insurer has commissioned a labour market research report from rehabilitation services provider in order to investigate the viability of employment as an apprentice mobile plant mechanic for the Worker. The report was relied on by the Insurer in making the original work capacity decision but was not provided to the Worker prior. The report notes the Worker’s prior employment as a cellarman, poker machine technician and street sweeper/truck driver. However, it identifies their pre‐injury role of apprentice mobile mechanic to be suitable for them and proceeds to contact two employers to discuss the responsibilities and remuneration associated with the role.
    • As outlined by the Worker in their internal review request, the functional requirements of the role as communicated by the employers contacted exceed the restrictions set out by the Worker’s NTD. While it was communicated that two‐person lifts are performed and that squatting may be avoided, the suggestion that the Worker may be able to avoid these tasks or seek assistance from other staff does not persuade them that they would be able to avoid further injury or exacerbation of their symptoms. The fact that the Worker would likely need to rely on other staff to perform the role out avoid particular tasks indicates that the role is not suitable employment for them.
    • The report by Rehabilitation Services also overstates the Worker’s transferable skills and experience, namely that they possess experience relating to procedures and safety in high risk environments. Their employment with their pre‐injury employer represents the sum of their experience as an apprentice mobile mechanic. They have not worked in the associated industry or worked with forklifts previously.
    • The Worker’s limited experience precludes them from having the base of experience expected by the employers contacted, noting preference given by one employer to applicants with an agricultural background, for example.
    • In considering their vocational background, the Worker currently does not possess the appropriate experience to gain employment as an apprentice mobile plant mechanic with another employer.
    • In reviewing the documented skills and experience, the author of the report also lists “strong physical fitness and stamina” which is inconsistent with the Worker’s injury and restrictions.
    • The Worker is currently awaiting specialist review in relation to advice concerning the need for further surgery (having previously undergone surgery under the care of the surgeon in September 2016) and continues to be certified as having ongoing restrictions in relation to their workplace injury.
    • Numerous prior specialist consultations have found that the Worker has restricted range of motion and significant thigh wasting, and in some instances, periods of swelling. They could therefore not be considered by prospective employers as having such fitness or stamina and in this instance, it appears that the author has overstated the Worker’s physical abilities and considered them suitable for roles which would be functionally inappropriate.
    • Further, the Worker’s current medication use including their pain relief medication (such as Tramadol) has the potential to preclude them from operating the machinery they would be required to work with in such an employment scenario and further advice from their medical practitioners is required prior to the Worker ceasing their current medication regime.
    • The Insurer relies on the Worker’s demonstrated capacity to perform suitable duties as evidence that they are able to work in suitable employment as an apprentice mobile operator. However, in reviewing the reports of the Worker’s treating parties over the same period they continued to work, it is clear that the Worker’s employment was physically unsuitable and unsustainable.
    • The legal representative has extracted several quotes from a variety of reports in support of the above statement.
    • The reports of the Worker’s treating parties indicate that they experienced continuation of their symptoms as well as pain and deterioration of their condition whilst attempting to sustain employment on selected duties as an apprentice plant mechanic. Additionally, they continue to suffer from pain which impacts upon their capacity for employment and requires further treatment.
    • The Worker does not believe that their PIAWE has been indexed as required under the 1987 Act.
  4. In reply, the Insurer’s submissions may be summarised as follows:
    • It confirms that new information to support a new work capacity decision has been received i.e. WorkCover NSW certificate of capacity (received in March 2018) which certifies the Worker with no current capacity for employment.
    • It has made a new “no current work capacity” determination from February 2018 being the date of the new certificate as certified by treating doctor.

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. In accordance with section 44BB(1)(b) of the 1987 Act, the Authority may not review a work capacity decision of the Insurer until it has been the subject of internal review by the Insurer or in accordance with 44BB(3)(b) an application for review by the Authority may be made without an internal review by the insurer, if the insurer has failed to conduct the review within 30 after the application for the internal review is made.
  5. The Worker has asked for a review of the indexation of their PIAWE by the Insurer. I have reviewed the Worker’s application for internal review. The Worker did not request a review of the indexation of their PIAWE by the Insurer and I am therefore unable to conduct a merit review of that particular aspect of the Worker’s application.

Current work capacity

  1. The Worker has referred the Insurer’s decision as to their current work capacity for review by the Authority. In conducting this review, I am to make my findings in relation to the definition of current work capacity under 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 their 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. The Insurer’s work capacity decision is dated January 2017 and it is for the period from this date for which an internal review of the work capacity decision is sought.
  5. The definition of current work capacity requires that I determine the Worker’s “present inability arising from an injury”.

Certificates of capacity

  1. There is a certificate of capacity dated January 2017 for the period from that date to February 2017. In that certificate of capacity, treating doctor has certified the Worker as having capacity for some type of employment for 8 hours per day, 5 days per week, in employment where they is able to remain within the following constraints:
    • Lifting less than 20kg
    • Carrying less than 5kg
    • No lifting from floor level
    • No squatting
    • Avoid stairs
  2. The treating doctor also noted that common sense should prevail, and that the Worker should avoid any activity causing pain and discomfort.
  3. There is monthly certification that is the same as above until October 2017 for the period from that date to November 2017.
  4. There are no certificates of capacity for the period November 2017 to February 2018.
  5. There is a certificate of capacity dated February 2018. This certificate is said to be for the period November 2017 to March 2018. In this certificate, treating doctor has indicated that the Worker had no current capacity for any employment during that period.
  6. The final certificate of capacity that is before me is for the period from March 2018 to April 2018. According to this certificate, the Worker continues in this period to have no current capacity for any employment.

Centrelink medical certificate

  1. There are two Centrelink medical certificates issued by treating doctor, the first is dated October 2017 for the period to January 2018 and the second is dated  January 2018 for the period to  April 2018. Each of these certificates indicates that the Worker was unfit for work and study for the period of certification and the reason provided is “R knee injury. Pain and decreased mobility”.

Other medical information

  1. The knee and shoulder surgeon examined the Worker in May 2017. The knee and shoulder surgeon noted that the Worker continued to experience pain and instability in their knee particularly when loading their patellar. The knee and shoulder surgeon noted that there were signs of instability and asked the Worker to obtain reports from a previous operation and to return the following week.
  2. In a follow up appointment in May 2017, the knee and shoulder surgeon indicated that they had seen the requested reports and that surgical intervention would be reasonable to address the instability of their knee.
  3. The orthopaedic surgeon 1 examined the Worker in May 2017. The orthopaedic surgeon 1 reports that on this day, they re‐examined the Worker and had made a recommendation for further surgery on the Worker’s knee to assist with stabilisation.
  4. There is a further letter from the orthopaedic surgeon 1 to treating doctor dated September 2017. This letter indicates that the Worker had obtained further advice from orthopaedic surgeon 2 and that they were keen to attempt a cortisone injection as an alternative to surgery to see if this was effective. The orthopaedic surgeon 1 noted that the Worker continued to have an unstable patellofemoral joint and significant wasting of their thigh.
  5. The Worker saw the orthopaedic surgeon 1 again in December 2017. The orthopaedic surgeon 1 noted that the Worker had been “laid off” from work and that they had concerns about the further muscle wasting on the Worker’s right thigh.
  6. The orthopaedic surgeon 1 saw the Worker in February 2018 and noted that there was “profound” muscle wasting of the right thigh that was secondary to the knee injury. The orthopaedic surgeon felt that surgery was less likely to be successful with the current state of the Worker’s leg.
  7. The orthopaedic surgeon 2, examined the Worker in August 2017, the orthopaedic surgeon 2 noted that at the time the Worker walked with a limp, had instability of the right knee and that they had pain that was somewhat controlled with medication. The orthopaedic surgeon 2 also noted that the Worker had significant muscle wasting in their right leg.
  8. The orthopaedic surgeon 2 indicated that they felt that proposed knee surgery would hopefully provide stability and relief of pain which would assist the Worker in remaining in their current employment but noted that they would continue to have increasing pain because of injury related arthritis.
  9. The pain medicine specialist examined the Worker in October 2017 and sent a report to the orthopaedic surgeon 1 in which they indicated that the Worker had agreed to go ahead with a steroid injection.
  10. The pain medicine specialist saw the Worker again in December 2017. They note that the Worker had had the steroid injection and received relief for a few days but that the injection had not had a lasting impact.
  11. A neurologist examined the Worker in January 2018. The neurologist noted that the Worker had significant swelling and heat coming from their knee when they examined them and felt that the Worker’s problems were not neurogenic in nature and observed that the muscle wasting was not likely to be addressed until the Worker’s pain could be controlled.
  12. A rheumatologist met with the Worker in March 2018. The rheumatologist noted that the Worker had been having ongoing and complex problems with their right knee and that in its current state they were not able to crouch and could therefore not perform their work.

Findings

  1. The information from treating doctor indicates that between January 2017 and November 2017 the Worker’s inability was such that they were able to work 8 hours per day, 5 days per week and in employment where they were able to lift less than 20kg, carry less than 5kg and undertake no lifting from floor level. Their inability also precluded squatting and required them to avoid stairs.
  2. It is clear from the correspondence between the Worker’s specialists and their NTD that there were ongoing concerns with their knee throughout 2017. While I have not documented every investigation above, the medical correspondence suggests an ongoing search for the cause of significant knee swelling from time to time as well as the muscle wasting referred to above. I have noted an increasing level of concern about the muscle wasting from various specialists and reference to increasing levels of pain.
  3. Although they are not certificates of capacity, the Centrelink medical certificates issued by treating doctor in October 2017 and January 2018, clearly indicate that the Worker had no capacity for employment as the result of their right knee injury from October 2017 up to and beyond February 2018, which is the date at which the Insurer has determined that the Worker’s capacity changed and they had no current work capacity.
  4. The treating doctor has issued a certificate of capacity in February 2018 for the period back to November 2017, indicating that in their opinion, the Worker had no capacity for any employment from that time. This is supported by contemporaneous Centrelink medical certificates. In combination with the increasing concern as to the deteriorating nature and ongoing problems that the Worker was experiencing, I find that the Worker had no capacity for employment of any kind from October 2017.

Suitable employment

  1. The Worker has requested a review of the Insurer’s decision in relation to suitable employment for them. The Insurer found that the role of an apprentice plant mechanic was suitable employment for them at the time of its work capacity decision in January 2017.
  2. In reviewing the Insurer’s decision, I am to have regard to the definition of suitable employment in the 1987 Act.
  3. “Suitable employment” is defined in section 32A of the 1987 Act as:
  4. Suitable employment, in relation to a worker, meansemployment 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.

  5. At the time of their injury, the Worker was engaged in employment as an apprentice plant mechanic. Following the injury, the Worker continued their apprenticeship with their employer. There is a case closure report prepared by the occupational rehabilitation consultant from an occupational rehabilitation services provider dated March 2017.
  6. In their report, the occupational rehabilitation consultant noted that the Worker was working on suitable duties with their pre‐injury employer (not full duties). They also noted that the muscle wasting in the Worker’s leg was preventing them from resuming full duties which included squatting and the ability to work safely at low levels. There is no description in the closure report of the Worker’s actual duties at the time of the report.
  7. There is a labour market research report dated January 2017. The report was prepared by the rehabilitation consultant of a rehabilitation services provider. The rehabilitation consultant concludes that the role of an apprentice mobile plant mechanic is suitable for the Worker.
  8. In the report, the rehabilitation consultant states:
  9. The functional demands of the role of an apprentice mobile plant mechanic align with the Worker’s functional capacity for work as per the WorkCover certificate of capacity (less than 20kg lifting and carrying with none off the floor level and no squatting, avoid stairs) as confirmed through the below employer calls. Although some heavy lifting is required, this is completed as a two person lift in line with workplace health and safety requirements, and squatting is only required on an occasional basis and can be avoided through implementation of an alternate technique. In addition, the Worker is currently completing the role of an apprentice mobile plant mechanic without difficulty and with the medical approval of their treating doctor.

  10. It is clear from the “closure report” prepared by the occupational rehabilitation consultant that the Worker was not completing their role as an apprentice mobile plant mechanic without difficulty. The occupational rehabilitation consultant report clearly states that the Worker was completing suitable duties with their pre‐injury employer and that their condition precluded them from squatting and working safely at low levels.
  11. I also note that the rehabilitation consultant has not correctly read the certificates of capacity issued by treating doctor. While these certificates state that the Worker is able to lift up to 20kg, they are only able to carry up to 5kg. This particular incapacity is not addressed within the labour market research report.
  12. The rehabilitation consultant has indicated that squatting is only occasionally required and can be avoided using an alternative method. It is unclear what alternative method of manoeuvring would be suitable for the Worker to undertake to achieve the position of a squat without actually squatting. The Worker has at no time during the period under review had the capacity to squat whether occasionally or otherwise.
  13. While it is clear that the Worker has the relevant skills, education and work experience to be an apprentice mobile plant mechanic, I am not satisfied that it is work to which they are suited when having regard to the nature of their incapacity for the reasons set out above.
  14. I note that the Worker was working for their pre‐injury employer at the time of the work capacity decision and that they continued to do so until October or November of 2017. During this period, they were not working in their pre‐injury role but was undertaking a subset of duties from that role, i.e. suitable duties.
  15. Suitable duties do not necessarily amount to suitable employment. For duties with a pre‐injury employer to constitute suitable employment they must be more than a collection of arbitrary or relatively meaningless tasks.
  16. I understand that although the Worker was restricted in their capacity, they were able to continue their apprenticeship with their pre‐injury employer and I consider that the duties that they undertook to do this must therefore have been meaningful and had value towards their overall qualification.
  17. All of the Worker’s treating practitioners were aware that they were continuing their employment with their pre‐injury employer. Their NTD continued to certify that they had capacity for work and I am satisfied that the work they undertook was such that they was able to continue having regard to the nature of their incapacity.
  18. The Worker was otherwise suited to the position by education, skills and work experience and had been supported in their return to work by an occupational rehabilitation services provider.
  19. The Worker’s employment was terminated by their employer at the end of their apprenticeship contract. The date of the termination was October 2017.
  20. I acknowledge that there is likely to have been a single role as an apprentice mobile plant mechanic in the labour market between January 2017 and October 2017 to which the Worker was suited. This was the role with their pre‐injury employer. However, as I am satisfied that the work with that employer was in fact employment, I must not have regard to whether the work or employment was of a type that is generally available in the employment market.
  21. I therefore find that for the period between January 2017 and October 2017 (the date on which the Worker’s employment was terminated), they were engaged in suitable employment and had current work capacity in accordance with the definition under section 32A of the 1987 Act.
  22. Following the termination of their employment by their employer, there was no suitable employment for the Worker between October 2017 and October 2017 and they had no current work capacity as a consequence during this period.
  23. From October 2017, the Worker had no current work capacity due to the nature of their inability arising from their injury.

Ability to earn in suitable employment

  1. During the period January 2017 to October 2017 the Worker was employed as an apprentice mobile plant mechanic on suitable duties with their pre‐injury employer. I have found that this was the only identified suitable employment for the Worker during the period under review. I therefore find that the Worker’s ability to earn in suitable employment during the period January 2017 to October 2017 was equal to their actual earnings during that period.

Next steps

  1. The Insurer is to calculate the Worker’s entitlement to weekly payments of compensation in accordance with my findings set out above.

Merit Review Service
Delegate of the State Insurance Regulatory Authority