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Our ref. WC008/18

Our Reference: 008/18

Findings on review

  1. The following are findings made by the State Insurance Regulatory Authority (the Authority) on review.
  2. The worker has 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.
  3. From October 2017 to November 2017, the worker had the capacity to work 8 hours per day, 3 days per week with a lifting/carrying/pushing/pulling capacity 2 kilograms, and no overhead lifting.
  4. From November 2017 to February 2018, the worker had the capacity to work up to 35 hours per week with functional limitations as referred to above.
  5. From February 2018, the worker has had no current work capacity.
  6. The worker is entitled to ongoing weekly payments of compensation under section 37 of the Workers Compensation Act 1987 (the 1987 Act) from October 2017.

Recommendation based on findings

  1. The following recommendation made by the Authority is binding on the Insurer and must be given effect to by the Insurer in accordance with section 44BB(3)(g) of the 1987 Act.
  2. The Insurer is to calculate weekly payments of compensation in accordance with my findings above from October 2017.

Background

  1. The worker is 56 years of age. They sustained a right shoulder injury while working with the pre-injury employer. The date of injury referred to in the information before me is June 2016.
  2. The worker has been in receipt of weekly payments of compensation from the Insurer.
  3. In October 2017, the Insurer made a series of work capacity decisions resulting in the reduction of the worker’s entitlement to weekly payments of compensation to nil under section 37 of the 1987 Act.
  4. The worker applied for internal review of the Insurer’s decisions.
  5. The Insurer conducted an internal review in February 2018 and affirmed its decision that the worker’s entitlement to weekly payments of compensation was nil.
  6. The worker made an application for merit review by the Authority. The application was received in February 2018. The application has been made within 30 days after the worker received notice of the internal review, as is required under section 44BB(3)(a) of the 1987 Act. The application has been lodged in the form approved by the Authority.

Legislation

  1. The legislative framework governing work capacity decisions and reviews is contained in the:
    • Workers Compensation Act 1987 (the 1987 Act);
    • Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
    • Workers Compensation Regulation 2016 (the Regulation).
  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.

Submissions

  1. In the application for merit review, the worker makes the following submissions:
    • The Insurer cut their weekly payments in February 2018.
    • They are not suitable for work as per work capacity certificate signed by the nominated treating doctor.
    • They went to their treating specialist in February 2018. Attached is their certificate.
    • Also, they need an MRI and the treating specialist wants a second opinion from another surgeon.
    • They will see the treating specialist again in May 2018.
    • At the moment, they are under medical conditions, therefore they are unable to work.
    • Their right shoulder injury is not alright.
    • They are doing physiotherapy.
  2. In the reply to the worker’s application for merit review, the Insurer makes the following submissions:
  3. In February 2018, the worker’s weekly benefits ceased following a work capacity decision made in October 2017. They are assessed as having the ability to work 24 hours per week earning $648 gross per week.
  4. The Insurer refers to a certificate of the nominated treating doctor dated February 2018.
  5. They have maintained this capacity since November 2017 and aside from a short period of incapacity between April 2017 and July 2017 (post-surgery) has consistently been certified with capacity for work.
  6. In January 2018, the worker underwent an ultrasound of the right shoulder at the request of the treating specialist. Ultrasound scans confirmed the following “there is tendinosis of the supraspinatus and infraspinatus tendons. No evidence of tear. The subscapularis could not be visualised on today’s assessment”.
  7. While the treating specialist has issued a medical certificate indicating that the worker has no capacity for work between February 2018 and May 2018, they have not provided any clinical justification for the worker’s period of incapacity (mid traffic controller course) or reasoning for a second opinion from another surgeon despite indicating that surgical maximum medical improvement has been reached.
  8. Both the Insurer and the occupational rehabilitation services provider have requested for the treating specialist’s consultation report and additional information in relation to the worker’s capacity for work and the request for further review by another surgeon. A response is yet to be received from the treating specialist.
  9. Post review with the treating specialist, the worker remains certified with a partial capacity for work 35 hours per week as per the latest certificate of capacity from the nominated treating doctor and in March 2018 the treating physiotherapist confirmed the worker has capacity to work as described in their report.
  10. In February 2018 post review with the treating specialist, the worker advised the Insurer they had successfully completed their traffic controller course and were awaiting their traffic controller cards in the mail. Further discussions have revealed the worker is interested in completing a first aid course.
  11. The worker underwent an MRI in March 2018 as per the request of the treating specialist (MRI report yet to be received).
  12. The worker continued to have a current capacity for work in line with the recommendations of the nominated treating doctor and the physiotherapist.

Documents considered

  1. The documents I have considered in this review are those listed in, and attached to, the application for merit review, the Insurer’s reply and any further information provided by the parties.
  2. I am satisfied that both parties have had the opportunity to respond to the other party’s submissions and that the information provided has been exchanged between the parties.

Reasons

Nature of merit review and jurisdictional matters

  1. This matter involves a merit review of the Insurer’s work capacity decision in accordance with section 44BB(1)(b) of the 1987 Act.
  2. The review requires that I consider all of the information before me substantively on its merits and make findings and recommendations that, in light of the information before me, are most correct and preferable.
  3. In their application for merit review, the worker has requested that the following decisions of the Insurer be reviewed by the Authority:
  4. Decision about their current work capacity
  5. In March 2018, the Insurer issued a “Notice under Section 74 of the Workplace Injury Management and Worker’s Compensation Act 1998”.
  6. That notice states “The Insurer does not have liability for weekly benefits in respect of your downgrade in capacity to no current work capacity for any employment due to your right shoulder injury sustained at work in June 2016”.
  7. The Insurer states that “you do not have an entitlement to weekly payments of compensation under section 33 of the Workers Compensation Act 1987”, and “there is insufficient medical evidence to support the recent downgrade under section 65 of the Workplace Injury Management and Workers Compensation Act 1998”. The Insurer advises the decision is made in accordance with section 33 of the 1987 Act.
  8. The Insurer then provides reasons relevant to its decision. I will not restate these reasons in full however in essence, the Insurer refers to evidence and information relating to the worker’s “current work capacity” as defined in section 32A of the 1987 Act. This includes:
  9. The previous certificates of capacity issued to the effect that the worker could work 35 hours per week with restrictions,
  10. That the treating specialist provided a letter headed “medical certificate” stating the worker was not suitable for work duties, that there was no further explanation from the treating specialist and the full report of this consultation is yet to be received, and
  11. The Insurer refers to correspondence of the occupational rehabilitation services provider regarding a medical case conference and the fact that the worker completed a training course and correspondence from the treating physiotherapist.
  12. The Insurer then goes on to state in the very same document that it has “not been able to obtain sufficient evidence to determine liability for your recent downgrade in capacity…an appointment has been organised with an injury management consultant…upon receipt of the report the Insurer will further review liability regarding your downgrade in capacity”.
  13. This is somewhat confusing noting the Insurer had already advised the worker in the very same notice that it did not accept “liability for weekly benefits in respect of your downgrade in capacity” and issued a notice under a provision of the 1998 Act requiring that an Insurer give notice and reasons when liability disputed (emphasis added): section 74 Workplace Injury Management Act 1998.
  14. I do note that section 43(2)(a) of the 1987 Act provides that a decision to dispute liability for weekly payments of compensation is not a work capacity decision of an Insurer.
  15. In my view, the section 74 notice issued by the Insurer is misconceived.
  16. The Insurer itself, in its own section 74 notice, has characterised this dispute as a dispute about a “downgrade” in capacity. The language of section 33 is not one of “capacity” but as to whether total or partial incapacity for work results from an injury. Nowhere in the notice does the Insurer deny that total or partial incapacity for work results from an injury.
  17. A “downgrade” in capacity is a reference to a reduction in a worker’s capacity to work. That is a dispute about a worker’s “current work capacity”, amenable to review under section 43(1) of the 1987 Act.
  18. Further, the Insurer has accepted liability for the worker’s claim for weekly payments of compensation and proceeded to make a work capacity decision in accordance with Division 2 of the 1987 Act, concerning weeks of compensation to which this review now relates. The worker’s weekly compensation entitlements continue to be impacted by the Insurer’s work capacity decision.
  19. The worker has referred to the Authority a dispute between them and the Insurer about their “current work capacity”. “Current work capacity” is defined in section 32A of the 1987 Act as follows:
  20. 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 (emphasis added).

  21. The Authority’s role is to conduct a “merit review” of the work capacity decision by the Insurer in accordance with section 44BB(1)(b) of the 1987 Act.
  22. A merit review requires that I consider all of the information before me afresh and make findings and recommendations that, in light of the information before me, are most correct or preferable. This requires consideration of the information before me concerning the worker’s “present inability arising from an injury” concerning the weeks of compensation affected by the Insurer’s work capacity decision.
  23. The Insurer made its work capacity decision in October 2017. Notwithstanding that the decision made by the Insurer may not have actually impacted the worker’s entitlement until after a notice period elapsed under section 54 of the 1987 Act, the Insurer had made a decision about the worker’s “current work capacity” which had the effect of altering the manner in which the Insurer determined their weekly compensation entitlements (subject to the notice period) from the time it made its decision.
  24. The fact that the Insurer’s work capacity decision has affected the worker’s weekly compensation payments for the weeks of compensation up until the date of this review is evident from the Insurer’s own work capacity decision of October 2017. The Insurer stated in its work capacity decision “this means that you will continue to be eligible for weekly compensation payments until February 2018. After this date, your weekly compensation payments will end” (emphasis added).
  25. There is now additional evidence concerning the worker’s “current work capacity” in this review. That evidence relates to their “present inability arising from an injury….” in respect of weeks of compensation covered by the Insurer’s work capacity decision.
  26. This includes evidence in the form of work capacity certificates by their nominated treating doctor and a document from their treating specialist (orthopaedic surgeon). The treating specialist has called the document a “medical certificate” and expresses a view about the worker’s suitability for work duties. This evidence is relevant to a decision about the worker’s “current work capacity”.
  27. Finally, the Insurer itself stated in its work capacity internal review of February 2018, as follows: “should the treating specialist report a change in your current capacity following your next review, the Insurer will conduct a further review of your capacity to work”. Contrary to its own statement, the Insurer did not conduct a further review, but issued a notice apparently disputing liability for weekly payments of compensation.
  28. The Insurer has referred to section 65 of the 1998 Act in its notice. Section 65 of the 1998 Act imposes requirements concerning “making a claim for compensation”, and the form and type of evidence required to enable an Insurer to determine a claim, including a claim for weekly payments of compensation. The worker has already made a claim for compensation including a claim for weekly payments, which has been accepted by the Insurer.
  29. Although the Insurer has made a bare reference to the provision in its notice and not expanded upon its reasons for reference to section 65. Section 65 of the 1998 Act contains provisions concerning “medical certificates” required to accompany a claim for weekly compensation. For example, it requires a statement concerning the likelihood of the worker’s employment being a “substantial contributing factor”. That provision relates not to evidence provided in a work capacity dispute, but evidence required to accompany a “claim” for compensation. Yet such matters have already been determined and accepted by the Insurer, and the Insurer has now made a work capacity decision.
  30. Accordingly, in my view, it is appropriate to proceed to conduct a review of those weeks of compensation impacted by the Insurer’s work capacity decision from October 2017, including by having regard to that information and evidence.
  31. I now proceed to conduct a merit of the Insurer’s work capacity decision, as referred to the Authority by the worker in accordance with section 44BB of the 1987 Act.

Current work capacity

  1. The worker is 56 years of age.
  2. They were working for the pre-injury employer performing heavy manual labour tasks.
  3. In June 2016, while pulling an object, they experienced an acute discomfort about the right shoulder, followed by increasing stiffness/weakness.
  4. They continued to work and used anti-inflammatories. As their symptoms deteriorated they attended the nominated treating doctor. An ultrasound was performed which identified a large defect tear at the rotator cuff with associated joint effusion. The worker was referred to a specialist orthopaedic surgeon, who indicated that the worker had a massive cuff tear involving complete subscapularis and supraspinatus.
  5. The worker was examined by an independent medical examiner in December 2016. They stated that the worker “has a very large tear of the rotator cuff”. They went on to state that the worker could work normal hours where there is no work above chest height and no forceful repetitive use of either arm, with a 5 kilogram lifting limit. They indicated “this is a very difficult tear to repair and even if that occurs, the risk of re-tear is very high, so that it would be totally inappropriate for them to return to their usual work”.
  6. In April 2017, the treating specialist performed surgery and provided a report dated June 2017 which states:
  7. “The worker is now close to three months post right shoulder cuff surgery and as you know they had a large supraspinatus tear which was retracted, scarred and required mobilisation and repair to a medialised footprint. They have a chronically retracted subscapularis tear which was not amenable to repair…

    Clearly they are not yet ready to return to their workplace which does not offer a light duties type office environment. I have suggested in one month’s time they may be suitable to commence some restricted duties with a 1 kg limitation the right side, at three hours per day. I have also explained that due to their significant shoulder injury and possibility of re-injury or re-rupture, I do not expect them to return to an unrestricted pre-injury work role. I have recommended that they permanently avoid overhead work and any heavy lifting”.

  8. The treating physiotherapist provided a report dated August 2017. They state the worker was progressing “slowly”, and recommended that the worker keep their current work status - no lifting, no repetitive and no overhead activities allowed at the current stage. The worker is only suited to work in an office environment.
  9. In August 2017, the treating specialist issued a document titled “medical certificate” stating:
  10. “The worker still has significant functional limitations with their right shoulder. They have significant stiffness and weakness. They should continue with their pool work and physiotherapy programme focussing on P/A ROM exercises. In terms of work roles, they should continue with a 2-kilogram weight limit and cannot perform any overhead work. They could do restricted roles in a part-time capacity within these restrictions only…I have reinforced again today that they will have long term permanent restrictions based on their right shoulder function (10-15 kg lifting, avoiding repetitive overhead activities, depending on their rehabilitation) and do not expect them to return to their previous work role which requires overhead lifting of 30kg”.

  11. Approximately two weeks later, in a document issued by the Insurer dated September 2017, the nominated treating doctor was asked to provide “clinical reasoning as to why the worker is restricted to work from 9am to 3pm”. At this time, the nominated treating doctor had been certifying that the worker had the capacity to work part-time hours of 9am to 3pm, 3 days a week.
  12. I do note that only two weeks before the nominated treating doctor was so asked, the treating specialist had indicated in their report that the worker was suited to “restricted roles in a part-time capacity”, as I had referred to above.
  13. The nominated treating doctor, then proceeded to provide an explanation to the Insurer as to why they considered part-time hours suitable, but also indicated that “light litter picking” were suitable duties for the worker to undertake.
  14. It appears that the worker then attempted to return to some type of duties without any success. An injury management consultant provided a report dated October 2017. They noted the worker had “reported difficulties with their post-operative return to work and with their employer regarding the provision of appropriate suitable duties as per the nominated treating doctor’s instructions”. A sequence of events then led to the termination of the worker’s employment.
  15. The injury management consultant noted that the worker was certified fit for part-time at the time they assessed the worker (8 hours per day, 3 days per week) with restrictions. They referred to a goal for the worker to increase to full-time hours of work.
  16. The treating specialist provide a further report dated January 2018. They state:
  17. “The worker has persistent restricted range and pain in the right shoulder….They are not working due to the shoulder and unfortunately their goal of becoming a deckhand was cut short due to their inability to swim adequately. I understand they are retraining for traffic control jobs though this is not yet secured. The worker has been continuing with their physiotherapy program. I would like to arrange ultrasound and x-ray imaging of the shoulder just to reassess the repair and will see them with these results in the coming weeks. In the meantime they will continue with the strengthening program”.

  18. In February 2018, consistent with their earlier document dated August 2017 where they had expressed a view about the worker’s capacity to work, the treating specialist issued a document titled “medical certificate”. They state:

    “The worker has maximally improved from their right shoulder surgery and has a persistent significant functional limitation. They are not suitable for work duties from today, February 2018 to May 2018”.

  19. The insurer submits that in January 2018 the worker underwent an ultrasound of the right shoulder at the request of the treating specialist. Ultrasound scans confirmed the following “there is tendinosis of the supraspinatus and infraspinatus tendons. No evidence of tear. The subscapularis could not be visualised on today’s assessment”.
  20. There is an imaging (MRI) report before me dated March 2018, and appears to provide information which is clearer than that referred to by the Insurer above. In summary, the MRI exhibited “altered signal intensity in the anterior fibres of the supraspinatus tendon in the region of the insertion suggestive of a tear that is filled with debris however there is minimal atrophy and the changes may in fact be due to altered signal related to the tendon repair…severely atrophic proximal teres minor muscle and to a lesser degree the remainder of the teres minor muscle. Severely atrophic subscapularis muscle with chronic tear. The long head biceps tendon is torn and retracted from the bicipital groove”.
  21. There are WorkCover Certificates of Capacity of the nominated treating doctor before me, for the weeks impacted by the Insurer’s work capacity decision.
  22. In a certificate dated October 2017, the worker was certified to be able to work part time hours of work with restrictions, consistent with the treating specialist’s view of August 2017. However, in a subsequent certificate dated November 2017, the nominated treating doctor expressed a view that the worker could work “up to” 35 hours per week with the same restrictions as earlier expressed - maximum 2 kilogram lifting, pulling and pushing capacity, no overhead lifting and sitting, standing, bending, twisting, squatting and driving as tolerated.
  23. This certification of “up to” 35 hours per week continued until the nominated treating doctor issued a certificate for the period March 2018 to April 2018 that the worker had no capacity for any employment.
  24. In my view, it is important in a matter such as this to have regard to the significance of the worker’s shoulder injury and to consider the manner in which the injury has progressed over time as it has impacted upon their capacity for employment.
  25. Further, the nature of that injury is still being investigated. The treating specialist has arranged for a second further expert opinion to be sought and the most recent MRI report contains information contrary to that referred to by the Insurer. The treating specialist has now issued a document indicating that the worker should not work, and explained their reasons for doing so- by stating that the worker has a “significant functional limitation” against a background of the worker having sustained a very significant shoulder injury, post-surgical repair.
  26. In June 2017, the treating specialist described the injury as a “significant shoulder injury” and consistent with the independent medical examiner’s observation which referred to the possibility of re-injury or re-rupture. In August 2017, the treating specialist stated “The worker still has significant functional limitations with their right shoulder. They have significant stiffness and weakness”.
  27. I also have regard to the fact that the worker attempted a return to very light duties yet this did not progress at all. They have not been in employment now for an extended period of time.
  28. The Insurer submits that “while the treating specialist has issued a medical certificate indicating that the worker has no capacity for work between February 2018 and May 2018, they have not provided any clinical justification for the worker’s period of incapacity (mid traffic controller course) or reasoning for a second opinion from another surgeon despite indicating that surgical maximum medical improvement has been reached”.
  29. It is important to consider the evidence as a whole and recent developments. According to the treating specialist, whose opinion I consider to carry considerable weight, noting that they are the treating specialist, the worker’s condition did improve between April 2017 and August 2017. Their report in April 2017 contained a more restricted, conservative view as to the worker’s capacity for work.
  30. By August 2017, the treating specialist was of the view that the worker “should continue with a 2-kilogram weight limit and cannot perform any overhead work. They could do restricted roles in a part-time capacity within these restrictions only…I have reinforced again today that they will have long term permanent restrictions based on their right shoulder function (10-15 kg lifting, avoiding repetitive overhead activities, depending on their rehabilitation) and do not expect them to return to their previous work role which requires overhead lifting of 30kg” (emphasis added).
  31. However, the worker then apparently attempted a return to light duties, without any success. The injury management consultant’s report dated October 2017 noted the worker had “reported difficulties with their post-operative return to work”.
  32. The injury management consultant recommended a goal of returning to full-time hours of work. That appeared to be more of a goal than a reality, as is evident from the most recent medical evidence of the nominated treating doctor and treating specialist.
  33. In their most recent report, the treating specialist states that the worker is “not suitable for work duties from today, February 2018 to May 2018”.They do provide a reason supporting that view, albeit a brief one. They state that the worker “has maximally improved from their right shoulder surgery and has a persistent significant functional limitation”.
  34. I accept the Insurer’s submission that aside from a short period of incapacity between April 2017 and July 2017 (post-surgery) the worker has consistently been certified with capacity for work- although has changed with the nominated treating doctor’s certificate of March 2018. However, much of this certification has been for part-time hours of work.
  35. The independent medical examiner was of the view that the worker could work normal hours where there is no work above chest height and no forceful repetitive use of either arm, with a 5 kilogram lifting limit. However, that view was provided before the worker underwent surgery and is now superseded by more recent evidence obtained post-surgery. I attribute minimal weight to their view in those circumstances.
  36. The Insurer has also referred to an ultrasound of January 2018. That has been superseded by a more recent MRI scan which appears to depict a more grim picture of the worker’s injury, at least as compared to the earlier ultrasound as referred by the Insurer.
  37. The Insurer submits that it and the occupational rehabilitation services provider have requested of the treating specialist the consultation report and additional information in relation to the worker’s capacity for work and the request for further review by another surgeon, and a response is yet to be received from the treating specialist. I acknowledge that the Insurer is conducting further investigations, and as it indicated in its internal review, may later consider the worker’s capacity for employment in light of that information. However, I must conduct this review on the information now before me.
  38. The Insurer submits that the worker remains certified with a partial capacity for work 35 hours per week as per the latest certificate of capacity from the nominated treating doctor and in March 2018 the treating physiotherapist confirmed the worker has capacity to work as described in their report. In fact, these circumstances have now been superseded by the nominated treating doctor issuing a certificate to the effect that the worker has no current work capacity.
  39. The Insurer also submits that in February 2018 post review with the treating specialist the worker advised the Insurer they had successfully completed their traffic controller course and was awaiting their traffic controller cards in the mail. Further discussions have revealed their interest in completing a first aid course. Such matters carry very little weight in an analysis of the worker’s capacity for employment. The fact that the worker has pursued return to work and occupational rehabilitation measures in accordance with their obligations to do so should not be confused with an assessment of their work capacity.
  40. In my view, the medical information is to be attributed significant weight in reviewing the worker’s capacity for employment, and particularly that of the nominated treating doctor and treating specialist, both of whom have treated the injury and are in a good position to understand the nature of the worker’s capacity to work. In particular, the treating specialist is a medical expert in their field, and has treated and operated on the worker’s shoulder condition. Their opinion in my view, carries significant weight.
  41. The worker themselves submit that they are not suitable for work as per work capacity signed by the nominated treating doctor, and the treating specialist wants a second opinion from another surgeon. They state they will see the treating specialist again in May 2018.
  42. In my view, when considering the evidence in its entirety, whilst I accept that for at least some of the weeks covered by the Insurer’s work capacity decision the evidence supported that the worker had capacity to work, I accept the treating specialist’s opinion that the worker is not suitable for work duties from February 2018.
  43. From October 2017, to that date, the evidence, including that of the nominated treating doctor, the treating physiotherapist, the treating specialist, and the injury management consultant, supported that the worker had capacity to work.
  44. I accept the nominated treating doctor’s certification as to the worker’s capacity to work with respect to the weeks of compensation from October 2017 to February 2018. However, it was in February 2018 that the treating specialist expressed a view that the worker is not suitable for work duties. I accept that view.
  45. Accordingly, I find that from October 2017 to November 2017, the worker had the capacity to work 8 hours per day, 3 days per week with a lifting/carrying/pushing/pulling capacity 2 kilograms, and no overhead lifting in accordance with the nominated treating doctor’s certification of that date.
  46. From November 2017 to February 2018, the worker had the capacity to work up to 35 hours per week with functional limitations as referred to above in accordance with nominated treating doctor’s certification.
  47. With respect to these weeks of compensation, the worker has not referred to the Authority any dispute about what constitutes suitable employment for them. Accordingly, whether or not the roles identified by the Insurer as suitable employment in its work capacity decision are in fact suitable employment for them at that time, in light of my findings, are a matter for the Insurer to determine.
  48. However, from February 2018, the worker has had no capacity to engage in any work, in accordance with the view expressed by the treating specialist on that date. That view has now been confirmed in the certification issued by the nominated treating doctor.
  49. Section 32A of the 1987 Act defines “current work capacity” and “no current work capacity”.
  50. “Current work capacity” is defined as:
  51. 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.

  52. “No current work capacity” is defined as:

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

  53. I find that from February 2018, the worker has had no capacity to engage in any employment. There is no dispute that they are unable to return to their pre-injury employment. Accordingly, they have, and has had, 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.
  54. The Insurer is to calculate weekly payments of compensation in accordance with these findings from October 2017.

Merit reviewer
Merit Review Service
Delegate of the State insurance regulatory authority