Our Reference: 012/18
Finding on review
- The following is a finding of the Authority on review that is to be the basis of a review decision by the Insurer.
- For the period April 2015 to December 2016, the worker had no current work capacity.
Recommendation based on finding
- The Insurer is to calculate the worker’s entitlement to weekly payments of compensation for the period April 2015 to November 2016 and is to make the payments accordingly.
- This 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).
- The worker injured their left wrist in a fall as they were leaving the premises of their pre-injury employer on the date of injury.
- The former insurer made a series of work capacity decisions in relation to the worker. It determined that the worker had no entitlement to weekly payments of compensation. The worker was notified of the decision by way of a letter dated January 2015.
- The worker applied for an internal review of the decisions. The internal review was conducted by the Insurer, however, more than 30 days had passed since the worker had made the application for internal review. The worker had by this time applied to the Authority for a merit review.
- The Authority received the application for merit review in January 2018. The application has been made in accordance with section 44BB(3)(b) of the 1987 Act.
- 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);
- Section 43 of the 1987 Act describes a “work capacity decision”.
- Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.
- 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.
- In the application for merit review, the worker has requested a review of their current work capacity.
- The worker’s submissions in support of their application for merit review are summarised as follows:
- The work capacity decision of the insurer was based on incorrect information and reports.
- The worker was left untreated for psychological injury when there were signs of having these injuries when their weekly benefits were ceased.
- At the time of the 2015 work capacity decision the worker had current work capacity for 38 hours of work per week, no lifting with their left hand, sitting/standing – light duties, use of right hand only.
- Suitable employment was in car detailing, driver, or sales assistant in the automotive industry and as a result they were not entitled to weekly benefits.
- The work capacity decision was based on:
- A functional capacity evaluation by a physiotherapist.
- Letters/decision from an independent medical examiner who based their decision on video surveillance footage, the functional capacity evaluation by the physiotherapist and the vocational assessment conducted by an occupational rehabilitation provider.
- The vocational assessment conducted by the occupational rehabilitation provider that stated work options were in the car detailing, driver, or sales assistant in the automotive industry.
- There were a number of issues with the information that the work capacity decision was based on:
- The functional capacity evaluation by the physiotherapist was based on the worker’s right hand being their dominant hand when they are left hand dominant.
- The vocational assessment was also based on the worker being right hand dominant.
- The worker is not right handed and how can they do things full time with their right hand when all their life (until the injury) they have used their left hand? It is like saying, “you are right handed, go and hammer with your left hand”.
- Their treating doctor only approved the role of the sales assistant.
- The independent medical examiner clearly stated “I cannot establish that it does resemble the worker” (when referring to surveillance footage). How can they then make a decision as to my [the worker’s] work capacity?
- The independent medical examiner stated that the worker has “some illness behaviour problems”. The Insurer did not assess whether they were psychologically affected, however, several psychiatrists have reviewed all of the information and examined the worker and have concluded that they have severe depression due to their work related injury.
- It is common for workers to suffer from depression or PTSD when they have an injury, especially if they have had three surgeries and lost their dominant hand function for life.
- Since it was not treated at the time, the worker now has severe depression which has compounded over 10 years.
- After the decision which stated that the worker could go back to work, they worked for two days at an employer and then went back to their treating doctor in pain. The Insurer argued that the injury was just aggravated, however, the treating surgeon proved that it was the original injury all along. It wasn’t something that just came back after 1½ years and they should be paid weekly benefits for the period from April 2015 to December 2016.
- In early 2017 the worker was sent to a psychiatrist by the Insurer. The psychiatrist clearly stated that their psychological issues were all related to the injury from 2008.
- They had a right to be paid for the period between April 2015 and December 2016 as they were suffering from a psychological as well as a physical injury. It is unfortunate that it took until 2017 to determine that there was a psychological injury, it would have been discovered earlier if the Insurer had sent them to a psychologist when the independent medical examiner stated that the worker had some form of illness behaviour, however, the Insurer was negligent.
- The worker is not a regular user of Panadeine Forte due to its side effects. It is very strong and this can be shown by their treating doctor’s prescribing history. The worker prefers to take medications such as Panadeine Extra, Voltaren and less often Nurofen as the first two are more effective in managing the pain in the wrist.
- It is also easier to get the above medications rather than prescription medications which require them to go to the doctor and then to the pharmacy, whereas the Panadeine Extra and Voltaren can just be purchased over the counter.
- The worker’s carer can just get these medications without the worker having to go out as they have depression and do not feel like doing things most of the time. They also prefer to use natural remedies such as heat packs or a heat wax and massage from the physiotherapist, as these options don’t have side effects.
- The worker asks how they can prove that they were taking these medications and using natural remedies between April 2015 and December 2016, when there is no record kept of them having been dispensed.
- The treating doctor has stated that the worker was unfit [for work] during the period April 2015 to December 2016.
- The worker does not have records of any treatment during the period as they could not afford any.
- The worker provides a history of their application for internal review and concludes that the Insurer has failed to conduct an internal review within 30 days of having made the application.
- In reply, the Insurer’s submissions may be summarised as follows:
- The worker was injured during their employment with their pre-injury employer.
- In January 2015 the previous insurer made a work capacity decision ceasing the worker’s entitlement to benefits from April 2015. The previous insurer found that the worker had capacity for work in suitable employment in car detailing, driver, or sales assistant in the automotive industry.
- The worker provided certificates of capacity for periods up to April 2015.
- The worker submitted certificates of capacity from November 2016 and has not provided certificates of capacity for the periods between April 2015 and November 2016.
- The previous insurer made a work capacity decision in February 2017. It found that no suitable employment options had been identified for the worker and reinstated their payments from November 2016.
- As the Insurer it continues to make weekly payments to the worker.
- In December 2017, the worker requested an internal review.
- In January 2018, it completed a preliminary review and requested further information from the worker.
- In January 2018, it completed an internal review and notified the worker of the outcome in January 2018. It determined that from April 2015 to November 2016, the worker had the capacity to work in suitable employment, identified in the work capacity decision dated January 2015.
- In their application for merit review, the worker’s main submission is that they had no work capacity during the period April 2015 to November 2016 and that the former insurer’s decision was based on incorrect information/reports.
- The worker has not provided any information to support their submissions that they had no current work capacity in the period in question.
- The worker’s request for internal review was made approximately 2 years after the work capacity decision of January 2015. They are therefore not entitled to weekly payments pursuant to section 44BC of the 1987 Act as a stay of the decision does not apply from April 2015 until November 2016, as the application for internal review was not made within 30 days of being notified of the work capacity decision.
Nature of merit review
- 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.
- I will then make findings and may make recommendations about the work capacity decision that have been referred for review.
- The review is not a review of the Insurer’s procedures in making the work capacity decision and/or internal review decision.
- The Insurer has indicated that it considers that the worker is not the subject of the stay provisions under section 44BC of the 1987 Act. It has submitted that they are not entitled to any retrospective payments, if the former insurer’s decisions were not maintained by the Authority.
- The Insurer is correct that the worker does not have the benefit of the stay provisions under section 44BC. However, a stay operates to prevent an insurer from taking action in accordance with a work capacity or internal review decision during the review process. The lack of the operation of these provisions does not prevent the Authority from making recommendations in relation to an application for merit review, which are to be applied retrospectively in circumstances where the findings of the Authority differ from those of the Insurer.
- Once the Authority makes its findings in respect of those weeks covered by the work capacity decision(s) referred to it for review, it may make recommendations based on those findings (section 44BB(3)(e)) that are binding on the Insurer (section 44BB(3)(g)).
- In this matter, if the worker has, or had, an entitlement to weekly payments of compensation that they should have been paid, they ought to be paid that compensation. To contend otherwise would deprive the worker to what is a rightful entitlement to compensation under the 1987 Act.
Current work capacity
- The worker has asked for a review of their current work capacity for the period April 2015 to December 2016. In conducting the review, I am to refer to the definition of “current work capacity” under section 32A of the 1987 Act as follows:
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment
- In considering the worker’s current work capacity, I must determine their “inability arising from an injury” during the period in question. In doing this, I will consider both their physical and psychological incapacity in turn.
- Certificates of capacity. There is a certificate of capacity dated February 2015, which is for the period February 2015 to April 2015. The certificate was issued by the worker’s treating surgeon.
- The worker’s treating surgeon certified that the worker had capacity for suitable duties for the period, in work where they were:
- Lifting up to 10kg occasionally
- Using their injured (left) hand occasionally
- Pushing and pulling occasionally
- The treating surgeon has indicated N/A next to “operating machinery/heavy vehicle” and I have taken this to mean that they considered that the worker should not have operated machinery or heavy vehicles in the course of their employment.
- There is a certificate of capacity that is undated but is for the period December 2016 to January 2017. The certificate states that the worker has no capability for any type of work. It is signed by the treating doctor.
- There are no certificates of capacity for the period that is the subject of this review.
- A specialised occupational therapist conducted a functional capacity evaluation of the worker in August 2014. They assessed the worker as having the following physical capacity:
|(R) arm carry||10kg|
|(L) arm carry||2kg|
|Floor to overhead lift||Unable|
|Floor to table lift||1.5kg|
|Lift and carry||10kg right arm only|
|Push and pull||2kg|
- I have noted that the occupational therapist mistakenly believed that the worker was right handed.
- The worker was seen by an independent medical examiner in October 2014. They had previously examined the worker in January 2017, however, I was not provided a copy of the report from that consultation.
- The independent medical examiner had been provided with surveillance footage of a person playing soccer which they were told was footage of the worker. They asked the worker whether they played soccer. The worker indicated that they no longer played soccer other than to kick a ball with their son.
- The independent medical examiner has noted in a report to the former insurer that they could not establish that the person in the footage shown actually resembled the worker but noted that they believed the footage would have been accurately taken by the surveillance company.
- In February 2018, the Authority asked the worker whether the person in the surveillance footage was him. The worker gave the following response:
“I can confirm that the person in the surveillance images wasn't me. If you refer to the independent medical examiner report, they had also asked me on several different occasions and I told them it wasn't me. They also said that the images weren't clear.“
- In providing their view of the worker’s capacity for employment, the independent medical examiner stated that their view was influenced by the footage that they saw in the surveillance materials. Given that the images were not clear and the worker denies being the person depicted, I have given very little weight to the independent medical examiner’s opinion which was that the worker could undertake 38 hours of work per week with no particular restrictions.
- I do note that the worker has told their psychiatrist, that they played soccer socially, kicking a ball with friends and that they did play a single competition game at some point, however, the worker has (in the documents before me) denied that they were able to play soccer in competition, and I am satisfied that the image referred to by the independent medical examiner in which a person playing as a goalie, said by the surveillance company to be the worker, is not likely to be the worker.
- There is a letter from the worker’s treating surgeon to the worker’s treating doctor dated January 2017. The treating surgeon noted that the worker had a significant increase in pain since they had last examined the worker in 2015 and that they stated that the worker could not lift anything forcefully. The treating surgeon noted that there were a number of possibilities and that they required further investigations to fully understand the problems that the worker was experiencing. They noted that the problems were very complex and included the possibility of carpel tunnel syndrome, synovitis of the extensor tendons and ligamentous impingement.
- There is a letter from the treating doctor that indicates they first saw the worker on November 2017. The treating doctor requests a review of the documents from the worker’s specialist as the treating doctor say that these state that the worker was unfit for work for the period April 2015 to November 2016.
- The worker was examined by an orthopaedic surgeon on July 2017. The surgeon had previously examined the worker on September 2014. I have not been provided with a copy of that report.
- The main purpose of the orthopaedic examination was to determine the worker’s whole person impairment, however, they also commented that the work that the worker undertook with an employer, that is the work that resulted in the re-activation of their claim with the previous insurer, did not appear to have been suitable employment.
- Findings in relation to physical capacity. There is no information as to the worker’s physical incapacity that was produced during the period April 2015 to December 2016. The worker’s treating surgeon is the person who issued the certificate of capacity stating that the worker had capacity for employment within specific functional tolerances. These tolerances were supported by the occupational therapist’s earlier assessment.
- When the treating surgeon next examined the worker in January 2017, they found that the worker had a range of complicated complaints and I am satisfied that they agreed with the treating doctor that the worker had no capacity for work at that time.
- I am satisfied that as at April 2015, the worker had physical capacity for some type of employment in accordance with the physical limitations set out by the treating surgeon as noted in paragraph 23.
- At some point after April 2015 and on or before December 2016, the worker developed a physical incapacity for employment. In light of my findings below, I have not found it necessary to determine when the physical incapacity developed.
- The worker attended a consultation with a treating psychiatrist in December 2016. They diagnosed the worker as having a mixed depressive and anxiety disorder as well as benzodiazepine dependence. The treating psychiatrist recommended that the worker take a number of actions and that they return in three weeks’ time. I have requested reports from all consultations with the treating psychiatrist, however, no further documents have been provided.
- The worker was assessed by another psychiatrist, in January 2017. They noted that the worker had a chronic, major depressive disorder and that this disorder stemmed from the workplace injury of 2008.
- The psychiatrist considered that the disorder would have previously put the worker at a disadvantage when applying for work and would also have undermined their capacity to retrain. They also noted that they felt that the worker would have major problems finding work without significant assistance.
- A consultant psychiatrist examined the worker in May 2017. On page 15 of their report, the psychiatrist notes that they consider that the worker’s incapacity for work is caused by the primary orthopaedic injury and also by the mild secondary psychiatric impairments.
- They noted that any attempt in future involving a return to work should be carefully supervised and supported and that the worker would require the services of a disability services agency and the attention of a sympathetic employer to gain any foothold in remunerated employment.
- Finding in relation to psychological injury. Both psychiatrists agree that the worker’s depressive illness has been ongoing and has impacted their job seeking and ability to perform in work for an extended period.
- I acknowledge that both psychiatrists referred mainly to issues in obtaining rather than performing in roles as a result of the worker’s psychological injury, however, I am satisfied that the psychological injury impacted all areas of the worker’s performance, especially based on the recommendation by the psychiatrist, that the worker have a carefully supervised and supported return to work.
- I am satisfied that the worker’s incapacity was ongoing and that it impacted the worker’s ability to return to work during the period April 2015 to December 2016 and that their inability was such that the worker required extensive assistance and support from a specialist disability services agency both in finding and maintaining employment. I also find that the worker would have required a particularly amenable employer who was prepared to be involved in a supportive return to work process.
- The definitions of “current work capacity” and “no current work capacity” require an assessment as to whether the worker is able to return to work in their pre-injury employment or in suitable employment.
- There is no dispute and the information supports that the worker has an incapacity such that they are not able to return to work in their pre-injury employment.
- Although the worker has not specifically referred to the former insurer for review, they have referred the decision in relation to their current work capacity which requires an assessment of their ability to return to work in suitable employment. Additionally, the worker has made a number of submissions in relation to suitable employment and I am satisfied that the matter has been referred for review.
- “Suitable employment” is defined in section 32A of the 1987 Act as:
Suitable employment, in relation to a worker, meansemployment in work for which the worker is currently suited:
- having regard to:
- 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
- the worker’s age, education, skills and work experience, and
- 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
- any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
- such other matters as the WorkCover Guidelines may specify, and
- regardless of:
- whether the work or the employment is available, and
- whether the work or the employment is of a type or nature that is generally available in the employment market, and
- the nature of the worker’s pre-injury employment, and
- the worker’s place of residence.
- Occupational rehabilitation assistance. There is a “workplace preparation report” also prepared by occupational rehabilitation provider. This report indicates that the worker was referred for occupational rehabilitation assistance in October 2014, following the preparation of the vocational plan.
- The introductory section of the document indicates that the preparation program was to include assistance with locating and securing job trials or funding through a work cover placement program. Apparently the worker was informed that neither of these programs was available to them as they had been given “fair notice” of a work capacity decision.
- Instead the worker was shown how to make cold calls and was provided with a resume. They were also informed not to disclose any of their physical limitations when applying for a role and was counselled on how to disclose “what they physically can do”, the timing of this disclosure was not apparent from the report.
- Vocational plan. A number of suitable employment options were identified for the worker in a vocational plan which is dated September 2014. The plan was prepared by the occupational rehabilitation provider.
- Nature of incapacity. I have found that the nature of the worker’s incapacity required a structured and supported return to the workplace. They also required an employer who was amenable to assisting with this supported return to work.
- During the period April 2015 to December 2016 and prior, there were no occupational rehabilitation services that were available to assist the worker with a return to work that was structured and supported.
- There is no information contained in the vocational plan to show that an employer of the type described by the psychiatrist existed in the labour market. It is also clear that the worker did not have the psychological capacity required to participate in employment without such assistance.
- The options proposed in the vocational plan were therefore not suitable employment in accordance with the definition set out above.
- Findings as to current work capacity. I find that for the period April 2015 to December 2016, the worker had no current work capacity in accordance with the definition under section 32A of the 1987 Act.
Merit Review Service
Delegate of the State insurance regulatory authority