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055/18

Our Reference: 055/18
Date of review: March 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 has current work capacity for 3 hours per day, 3 days per week in employment where they can lift up to 1 kg with their right hand and 2kg with their left hand.
  3. The Worker's entitlement to weekly payments of compensation is to be calculated under section 37(3) of the Workers Compensation Act 1987 (the 1987 Act).

Recommendation based on findings

  1. The Insurer is to assess the Worker's entitlement to weekly payments of compensation in accordance with my findings above, from December 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 their left shoulder in the course of their employment as a customer service operator with pre-injury employer. They accepted date of injury is date of injury.
  2. Following their injury, the Worker continued to work in suitable duties for their pre-injury employer until October 2017.
  3. In October 2017, the Worker commenced work with a post-injury employer in a desk based role. They subsequently resigned from their role with pre-injury employer in November 2017.
  4. From November 2017, the Worker reports that their condition began to deteriorate. They elected to resign from their position with post-injury employer due to a security breach in November 2017. The Worker feels that the breach was the result of their inability to perform their duties properly because of limitations imposed on them by their injury.
  5. In December 2017, the Insurer made a series of work capacity decisions in relation to the Worker. The Insurer determined that the Worker's entitlement to weekly payments of compensation was nil.
  6. The Insurer conducted an internal review and wrote to the Worker in February 2018. The Insurer affirmed the original work capacity decisions.
  7. The Authority received the application for merit review in March 2018. The application has been accepted by the Authority.

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 about their current work capacity.

  2. The Worker's submissions in support of their application for merit review are summarised as follows:
    • They sustained bilateral shoulder and cervical spine injuries in the course of their employment with pre-injury employer. Prior to the injury they worked an average of 12 hours per week and their pre-injury earnings were determined by the Insurer to be $323.10.
    • In May 2017, the nominated treating doctor, certified them as having capacity to work 4 hours a day, 3 days a week (total of 12 hours) for the period May 2017 to June 2017 performing suitable duties.
    • The nominated treating doctor provided another WorkCover NSW certificate of capacity (certificate of capacity) in June 2017 with the abovementioned restrictions (as to hours of work and suitable duties).
    • They were struggling financially and were eager to return to the workforce. They found a suitable position as a relationship manager with post-injury employer. The position was offered on a fulltime basis with a wage of $21.07 per hour for the contracted 37.5 hours per week. This equated to a weekly wage of $790.13.
    • To increase the likelihood of obtaining that employment, they consulted the nominated treating doctor in September 2017 and obtained a non-WorkCover medical certificate which stated, "fit to work as office person full hours, 5 days a week".
    • They were offered the position with post-injury employer and in November 2017 they resigned from pre-injury employer.
    • They commenced employment with post-injury employer in October 2017.
    • In November 2017 their condition deteriorated, and the nominated treating doctor certified them as totally unfit.
    • In November 2017 they elected to resign from their position at post-injury employer due to a security breach. They say that the breach was in relation to the Worker’s inability to perform their assigned tasks due to the limitations imposed because of their injuries and disabilities sustained during their employment with pre-injury employer.
    • The position as a relationship manager was office based and required them to sit for long periods of time whilst executing their duties on a full-time basis. This caused great discomfort to their injured upper extremity and it was difficult for them to focus and perform to the standards expected whilst coping with their deteriorating injuries.
    • The position with post-injury employer was their attempt to secure alternative suitable employment as a result of their resignation with their former employer as they had been informed that they were no longer able to provide them with suitable duties.
    • In December 2017, the nominated treating doctor certified them as being fit to work for 5 hours a day, 4 days per week (20 hours per week) for the period December 2017 to February 2018.
    • In December 2017, the Insurer made a work capacity decision. It based its decision on the basis that the Worker demonstrated that they could work 37.5 hours per week as per their contract with post-injury employer.
    • In January 2018, they requested an internal review of the work capacity decision. In February 2018, the Insurer responded to the request and maintained the original decision.
    • In February 2018, the nominated treating doctor certified them as having capacity for 3 hours a day, 3 days a week (9 hours total) for the period February 2018 to March 2018.
    • They accept that the employment identified in the work capacity decision is suitable but does not accept that they have current work capacity in accordance with the work capacity decision.
    • They submit that the work capacity decision should not have been made on the basis that they are able to work 37.5 hours a week. Their inability to maintain the position with post-injury employer, as illustrated by their election to resign because of their work-related injuries is evidence that they can't undertake 37.5 hours per week of work.
    • Their nominated treating doctor who has treated them regularly for their work-related injuries has never provided a certificate of capacity certifying that they are fit for 37.5 hours per week of work.
    • They understand there was a non-WorkCover medical certificate dated September 2017 that stated "fit to work as office person full hours; 5 days a week", however this certificate was provided for the purpose of increasing the likelihood of obtaining suitable employment, in particular, the position with post-injury employer.
    • Their decision to resign is clear evidence that they cannot perform to that capacity.
    • More weight should be placed on the regular certificates of capacity rather than one irregular non-WorkCover certificate of capacity which was issued for the sole purpose of obtaining employment rather than reflecting their actual capacity for work.
    • They do not have capacity for 24 hours of work which the functional assessment dated July 2017 identified them to have. At that time, the nominated treating doctor was providing them with certificates of capacity that certified them as having capacity for 4 hours a day, 3 days a week.
    • The opinion and assessment of their nominated treating doctor as reflected on the certificates of capacity has more significance than a functional assessment which took place over one day. They have been consulting their nominated treating doctor regularly and the functional assessment should not contradict the opinion of a medical expert who has examined them regularly.
    • Additionally, they consider that their entitlements to weekly payments of compensation as determined in the work capacity decision have been determined under the incorrect section of the 1987 Act. The Insurer has made its determination under section 37(3) of the 1987 Act, that is "where a worker has a capacity and has returned to work for less than 15 hours". The work capacity decision relies on them having been able to demonstrate that they can work an average of 36.25 hours a week earning the amount of $763.37.
    • The Insurer should have calculated their entitlement under section 37(2) as the amount that they were able to earn in suitable employment was $763.37 which was based on a 36.2 hour week and therefore has returned to work for "not less than 15 hours per week" as provided in section 7(2) [sic].
    • Putting aside the incorrect application of the Act in respect to the entitlements to weekly compensation, their condition continues to deteriorate, as reflected in the most recent certificate of capacity dated February 2017 which certifies them as fit for only 9 hours per week.
    • Their maximum working capacity is 9 hours a week as reflected on the most recent certificate of capacity dated February 2017 [sic].
  3. In reply, the Insurer's submissions may be summarised as follows:
    • The Worker's certificate of capacity dated November 2017 indicated that they had no work capacity for the single day. The same certificate stated that there was "no change in capacity since last certificate dated May 2017. Lifting up to 5kg with the left hand, lifting up to 7kg with both hands, avoid work above shoulder height". The certificate also notes that they should rotate their jobs.
    • Although the Worker was certified with no capacity for a single day (November 2017), certificates prior and post this date were taken into account in determining their work capacity as this was demonstrated on those certificates including the Worker's ability to participate in their employment [sic].
    • At point 9 of the Worker's submissions: The reasoning behind the resignation is not conclusive by evidence [sic]. It has not been provided with a resignation letter or letter of separation to confirm the reason for resignation is as a result of injury.
    • A conversation with a case officer on November 2017, in which the Worker indicated that they resigned as they were given the option to voluntarily resign or be let go due to a breach in security policy. It was also mentioned that the Worker was pursuing part time positions as opposed to full time positions due to the workload.
    • It refers to the resignation letter to pre-injury employer dated November 2017 that advises the Worker's intention changing jobs as the "relationship manager" was considered more suitable given their injury.
    • It also refers to the "offer of employment letter" with the post-injury employer dated October 2017 which states that "termination" based on misconduct includes, but is not limited to:
      1. Any act of dishonesty.
      2. Breach of company's policy on email use or internet access.
      3. Breach of company's policy on equal opportunity and sexual harassment; or
      4. Fighting or aggressive or intimidating conduct.
    • At point 11 of the Worker's submissions: The work capacity decision dated December 2017 has assessed the Worker as having the ability to work 37.5 hours per week.
    • The hourly restriction is based on the Worker's ability to work in a fulltime position with post-injury employer group. Had the employment not ceased due to a policy breach, the Worker could have remained employed completing their office duties.
    • At point 14 of the Worker's submissions: It was not provided with the certificate of capacity until the merit review. The certificate does not indicate the cause for the downgrade on the document dated February 2018 as no significant change has been indicated on the claim.
    • It is now investigating the reason behind the downgrade in work capacity. Once the information is received, the certification will be reviewed in accordance of this work capacity decision dated December 2017 [sic].
    • It is still relying on the evidence available at the time of the work capacity decision dated December 2017.
    • At point 15 of the Worker's submissions: it accepts that the Worker accepts the suitable employment options identified in the "internal work capacity decision" dated  February 2018.
    • It is relying on the Worker's demonstrated work capacity as opposed to assessment for the purposes of the internal work capacity decision dated February 2018. This has been identified as their experience with post-injury employer where they were actually employed and earnt wages as reflected in the internal work capacity decision dated  February 2018 and ceased working due to a breach of policy.
    • At point 16 of the Worker's submissions: it is unknown why the Worker's employment with post-injury employer ceased and where this was due to their injury or a breach of policy (as initially reported). This option was only applied in the original work capacity decision dated December 2017 as it was considered the only option that the Worker had demonstrated work capacity for a period of approximately 6 weeks.
    • It would also like to refer to the vocational and functional assessment dated July 2017. In this assessment, the Worker was assessed as being capable of performing the roles of guest service agent/reservations clerk, customer service representative and computer sales/sales support person.
    • The internal review documented the Worker's earning capacity in relation to these positions as being $576.00 per week for a guest service agent/reservations clerk, $756.00 per week for a customer service representative and $576.00 per week for a computer sales person/sales support person.
    • These amounts are based on the Worker's ability based on the hourly restriction based on their functional assessment and would still reduce their benefits to nil as their pre-injury average weekly earnings have been deemed as $323.10.
    • Point 17 of the Worker's submissions: The nominated treating doctor would not have issued a certificate allowing the Worker to work 37.5 hours per week if there was a possibility of aggravation. This evidence has been taken into consideration when making the decision.
    • Point 18 of the Worker's submissions: The Worker has demonstrated their ability and capacity and therefore its decision is based on their demonstrated capacity.
    • Point 19 of the Worker's submissions: nominated treating doctor also endorsed the options identified in the vocational assessment and it refers to their fax dated July 2017 where they stated that the Worker was capable of performing these roles 8 hours a day, 3 days a week.
    • The Worker has demonstrated their ability to work in excess of 24 hours per week on a regular basis.
    • Point 20 of the Worker's submissions: At the time of both of the decisions the Worker was not working greater than 15 hours per week as they had resigned from post-injury employer.
    • As per section 37(3) of the 1987 Act:
    • 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:

      (AWE x 80%) — (E+D) = New weekly payment

      ($323.10 x 80%) - $763.37 = Nil

    • The Worker is not actually working above 15 hours and therefore section 37(3) applies to the calculation of their entitlement.
    • They have voluntarily resigned from their position and was not working at the time of the decision.
    • Based on all of the evidence available the Worker does have a work capacity and has demonstrated this in their employment with post-injury employer group.

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.

Current work capacity

  1. The Worker has referred the Insurer's decision in relation to their current work capacity for review by the Authority.
  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 their 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. In their submissions, the Worker has indicated that they "accept that the employment identified in the work capacity decision is suitable but do not accept that they have current work capacity in accordance with the work capacity decision".
  5. I understand from the submissions that the Worker agrees that they are able to return to work in suitable employment but that they dispute the Insurer's findings as to the nature of their "present inability arising from the injury" and therefore has requested a review of their current work capacity.
  6. Termination of employment with post-injury employer. I have read the submissions of the Worker and the Insurer in relation to the Worker's employment and the termination of that employment with post-injury employer. It appears that there is some disagreement as to the reason that the Worker departed from post-injury employer after approximately 6 weeks of employment.
  7. The reasons for the Worker's departure from their employment may have had some bearing on my findings, if it was clear that they were not able to continue in the role as a result of their injury.
  8. The information that is available is not clear on the matter. As such I have placed very little weight on the Worker's departure from post-injury employer and have relied on the medical and allied health professional assessments that are before me to make my findings.
  9. Certificates of capacity. I have been provided with certificates of capacity that are for the period between May 2017 and March 2018. For the period May 2017 to June 2017, the nominated treating doctor certified that the Worker had capacity for 4 hours of work per day, 3 days per week in employment that is consistent with their ability to:
    • Lift up to 2kg with their left hand.
    • Avoid repetitive pulling and pushing.
    • Avoid repetitive use of their left hand.
  10. The nominated treating doctor issued a certificate of capacity dated June 2017, in which they indicated that from that date "onwards" the Worker had capacity for 4 hours of work per day, 3 days per week in work where they could:
    • Lift up to 5 to 7kg with their left hand.
    • Bilaterally avoid lifting above chest height.
    • Avoid repetitive pulling and pushing.
    • Avoid repetitive use of their left hand.
  11. The nominated treating doctor has also noted that the Worker is "suitable for express register", the statement is followed by several illegible words.
  12. There is a medical certificate issued by the nominated treating doctor that is dated September 2017. On that certificate, the nominated treating doctor has certified that the Worker has been "suffering from left shoulder pain and is now improving & fit to work as office person full hours; 5 days a week'.
  13. In November 2017, the Worker again visited the nominated treating doctor who issued a certificate of capacity. They noted that there was an aggravation of pain on November 2017 and that the Worker was not fit for work on that day. Their notes indicate that they otherwise considered that the Worker had the same capacity as indicated in the certificate of capacity dated May 2017. They also noted that they should "rotate jobs".
  14. In December 2017 for the period from that date to February 2017, the nominated treating doctor issued a certificate of capacity indicating that the Worker had capacity for work for 5 hours per day, 4 days per week where they were able to:
    • Lift up to 5 kg with their left arm but not above shoulder height
    • Avoid hard pushing and pulling
    • Driving as tolerated
  15. A further certificate of capacity was issued for the period January 2018 to February 2018 in which the nominated treating doctor certified that the Worker had capacity for work for 5 hours per day, 4 days per week in employment that was consistent with that outlined at paragraph 30 and with the additional stipulation of a limitation of lifting up to 7kg bilaterally.
  16. The final certificate of capacity that has been provided to me is dated February 2018 and is for the period from that date to March 2018. In this certificate of capacity, the nominated treating doctor has indicated that the Worker has capacity to work 3 hours per day, 3 days per week and that they are able to lift 1 kg with their right hand and 2kg with their left. They are to avoid work above shoulder height.
  17. Functional assessment. The senior consultant with the functional assessment provider conducted a functional assessment with the Worker in July 2017. The senior consultant produced a report of their findings which is dated July 2017.
  18. The senior consultant assessed that the Worker had capacity for employment for 8 hours per day, 3 days per week where the following functional tolerances could be accommodated:
FunctionCapacity
Reaching Restricted in overhead; forward reaching is ok.
Floor to waist lifting 8 kg on a rare basis; 6 kg on an occasional basis; 4 kg on a frequent basis.
Waist to shoulder height lifting 5 kg on a rare basis; 3.7 kg on an occasional basis; 2.5 kg on a frequent basis.
Waist to overhead lifting Not recommended bilaterally.
Bilateral carrying 8kg on a rare basis; 6kg on an occasional basis; 4kg on a frequent basis.
Unilateral carrying (left) 4kg on a rare basis; 3kg on an occasional basis; 2kg on a frequent basis.
Unilateral carrying (right) 6kg on a rare basis; 4.5kg on an occasional basis; 3kg on a frequent basis.  
  1. Findings in relation to work capacity. Regardless of any assessments that took place prior to  October 2017, the Worker commenced full time employment in office based employment on that date.
  2. Exactly one month after they commenced employment, the Worker returned to the nominated treating doctor. On that day nominated treating doctor issued a certificate of capacity saying that the Worker had no current capacity for any employment for that day but otherwise had capacity for employment in accordance with the certificate of capacity issued on May 2017. By issuing a certificate of capacity, nominated treating doctor has clearly indicated that the Worker's incapacity in November 2017 and ongoing limitations were the result of their injury.
  3. The certificate of capacity issued in May 2017 indicated that the Worker had capacity for some type of employment for 4 hours per day, 3 days per week. Despite this certification, it appears that the Worker continued to work for another two weeks on a full-time basis. They then terminated their employment in November 2017.
  4. Following the Worker's departure from their employment with post-injury employer, the nominated treating doctor has continued to review their capacity in relation to their injury. The nominated treating doctor originally certified that the Worker had capacity to work 5 hours per day, 4 days per week but reduced this assessment to 3 Hours per day, 3 days per week on February 2018.
  5. Other than a medical certificate issued in September 2017, the nominated treating doctor has consistently indicated that the Worker has capacity for some type of employment but for hours that are less than full time. There is a clear pattern of the nominated treating doctor conducting assessments as to the Worker's capacity for employment and issuing certificates of capacity that reflect the Worker's abilities at a particular point in time.
  6. The only other opinion that I have as to the Worker's capacity for employment is from a functional capacity assessment that was undertaken in July 2017. The assessment is now 9 months old and I prefer the more recent opinions of the nominated treating doctor who has had the ongoing opportunity to review the Worker.
  7. Regardless of the fact that the Worker undertook full time employment for 6 weeks; after only 4 weeks of that employment they returned to their nominated treating doctor and was found to be totally unfit for work for one day and to have reduced capacity for employment thereafter.
  8. I consider that the Worker's attempt at full-time employment has demonstrated that they do not have capacity for those hours of work and I am persuaded by nominated treating doctor’s opinion, who has provided an ongoing review during this period, that the Worker currently has capacity for employment for 3 hours per day, 3 days per week in employment where they are able to lift 1kg with their right and and 2kg with their left hand.
  9. I understand that the Insurer is currently investigating the reasons for the most recent change in certification as to the Worker's capacity for employment. This does not invalidate or put into question, nominated treating doctor’s current medical opinion, regardless of whether they have provided a clear explanation as to the reason for the change.
  10. Finding. The Worker has a present inability arising from an injury such that they are able to return to work in suitable employment in accordance with the hours of work and functional tolerances set out by the nominated treating doctor on the certificate of capacity dated February 2018.
  11. Calculating entitlement to weekly payments of compensation

  12. There is no dispute that the Worker's entitlement to weekly payments of compensation falls in the second entitlement period and is to be determined in accordance with section 37 of the 1987 Act.
  13. Section 37 of the 1987 Act makes for following provisions for weekly payments of compensation in the second entitlement period:
  14. (1)  The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:

    (a) (AWE 80%) - D, or

    (b) MAX - D, whichever is the lesser.

    (2)  The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:

    (a) (AWE x 95%) - (E + D), or

    (b) MAX - (E + D), whichever is the lesser.

    (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 x 80%) - (E + D), or

    whichever is the lesser.

  15. The Worker submits that their entitlement to weekly payments of compensation should be determined in accordance with section 37(2) of the 1987 Act. They submit that they returned to work for 37.5 hours per week.
  16. While I agree that between the dates of October 2017 and November 2017 the Worker had returned to work for a period of not less than 15 hours per week, that is no longer the case.
  17. I understand that the Worker has not participated in any employment since November 2017. The test under section 37 for determining weekly payments of compensation is ongoing. It is to be applied on a weekly basis. In the weeks following November 2017 to date, the Worker could not be said to have returned to work for a period of not less than 15 hours.
  18. I therefore find that the Worker's entitlement to weekly payments of compensation should be calculated in accordance with section 37(3) of the 1987 Act.

Merit Review Service
Delegate of the State Insurance Regulatory Authority