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Merit review WC028/18

Our Reference: 028/18
Date of review:

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 no current work capacity and is likely to continue indefinitely to have no current work capacity for the foreseeable future.
  3. The Worker meets the special requirements for continuation of weekly payments of compensation in accordance with section 38(2) of the Workers Compensation Act 1987 (the 1987 Act).

Recommendations based on findings

  1. The Insurer is to calculate and make weekly payments of compensation to the Worker in accordance with my findings above.
  2. These findings are binging on the Insurer in accordance with section 44BB(3)(g) of the 1987 Act.

Background

  1. The Authority received the application for merit review on XX May 2017. The application has been accepted.

Legislation

  1. The legislative framework governing work capacity decisions and reviews is contained in the:
  2. Section 43 of the 1987 Act describes a ‘work capacity decision’.
  3. Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.

Information considered

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

Submissions

  1. In the application for merit review, the Worker has requested a review of the following work capacity decisions of the Insurer:
    • A decision about their current work capacity.
    • A decision about what is suitable employment for them.
    • A decision about the amount that they are able to earn in suitable employment.
    • A decision about whether, as a result of their injury, they are unable (without substantial risk of further injury) to engage in employment of a certain kind because of the nature of that employment.
  1. The Worker’s submissions in support of their application for merit review are summarised as follows:
    • The Insurer’s assessment as to their capacity to earn and the number of hours that they are able to work is inconsistent with the medical opinion of their treating neurosurgeon and treating doctor.
    • They should continue to receive weekly compensation payments at the current rate being a worker who has no capacity for work.
    • The work capacity decision should be done at a more suitable time which would be when they have completed all of their medical treatment, including potential further surgery and has fulfilled sufficient rehabilitation to again be fit for suitable duties.
    • The work capacity assessment commenced in August (2017) and they were notified in September 2017. On XX September 2017, their legal representative forwarded a letter to the senior case manager of the Insurer indicating that the commencement of the work capacity assessment was premature.
    • The Insurer proceeded with the work capacity assessment and made a work capacity decision dated XX October 2017 reducing their rate of weekly compensation. This was based on the view that they are fit for 15 hours of work per week.
    • They unsuccessfully lodged an application for internal review with the Insurer. This lead to a final work capacity determination by the Insurer dated December 2017.
    • They had a further consultation with their treating neurosurgeon in November 2017 for recommendations for further treatment due to the ongoing pain in their lumbar spine and numbing pain in their legs. The treating neurosurgeon recommended further scans before a further review.
    • The further review took place in November 2017 and the treating neurosurgeon determined that they should undergo nerve facet injections at the L2/3 and L3/4 levels. He also recommended physiotherapy and determined that they were unfit for work.
    • The treating neurosurgeon has briefed them about the possible need for further surgery in the near future if the nerve block does not provide permanent pain relief. He is of the view that the surgery is very likely as the facet blocks are unlikely to provide permanent relief.
    • It is anticipated that they will be undergoing surgery in 2018.
    • Their nominated treating doctor has currently provided a certificate of capacity following the consultations with the treating neurosurgeon and has determined that they have no current work capacity.
    • There is current medical evidence by both the treating neurosurgeon and the treating doctor that they have no current work capacity.
    • The work capacity decision is in contradiction to the current medical evidence and as the Insurer was notified in September 2017, the work capacity assessment had commenced prematurely and unfairly for them.
  1. In reply, the Insurer’s submissions may be summarised as follows:
    • At the time that the work capacity decision was made it had certificate of capacity for the Worker that indicated that they were able to work 15 hours per week.
    • In December 2017 it received a new certificate of capacity indicating that the Worker was unfit for work following a specialist recommendation.
    • In a report dated November 2017, the treating neurosurgeon advised that he believed that the Worker was unfit for work as they require bilateral L2/3 facet blocks followed by bilateral facet blocks at two different sessions.
    • To date it has only accepted liability for levels L4/5 and L5/S1 and not for the levels that relate to the downgrade in capacity. It has issued a section 74 notice for the downgrade in capacity given that it has not accepted liability for these levels.
    • In January 2018 it issued a section 74 notice disputing the certificate of capacity dated XX December 2017. This notice relied on the I-Fit Rehab functional capacity report dated XX December 2017 that reported that the Worker has the capacity to work 5 hours per day, 4 days per week. This assessment was conducted in November 2017.
    • At the commencement of the work capacity assessment in September 2017, the Worker had been consistently demonstrating the capacity to work at least 15 hours per week with their pre-injury employer working suitable duties.
    • The work capacity assessment was also completed as a requirement under section 38(3) of the 1987 Act as the Worker was approaching the 130 week gateway at the time of the commencement.
    • At this stage, no request for surgery has been received.

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. The Worker has consistently referred to a request that was made to the Insurer to delay the making of a work capacity decision on the grounds that such a decision was premature. The timing of a work capacity decision is a matter of the Insurer’s procedures and is therefore outside of the scope of this merit review.
  5. Section 44BB(1)(b) of the 1987 Act sets out the requirements that must be satisfied before the Authority may conduct a merit review of a work capacity decision, as follows:
  6. An injured worker may refer a work capacity decision of an insurer for review:

    (b)  by the Authority (as a merit review of the decision), but not until the dispute has been the subject of internal review by the insurer, or

  1. In the Worker’s request for an internal review of the work capacity decision by the Insurer they asked for a review only of:
    • A decision about what is suitable employment for them.
    • A decision about whether, as a result of their injury, they are unable to engage in employment of a certain kind without substantial risk of further injury.
    • Any other decision that affects their entitlement to weekly payments of compensation including a decision to suspend, discontinue or reduce the amount of weekly payments of compensation.
  2. Despite the Worker limiting their request to a review of the above matters, the internal reviewer has also conducted a review of the Worker’s current work capacity and the amount that they are able to earn in suitable employment.
  3. The Worker has now also referred the latter matters for merit review in addition to the matters that they referred for internal review.
  4. I am satisfied that these matters have been the subject of an internal review by the Insurer, despite them having not been referred for review and will proceed accordingly.

Current work capacity

  1. The Worker has requested a review of their current work capacity. In conducting that review I am to refer to the definition in the 1987 Act.
  2. “Current work capacity” and “no current work capacity” are defined in section 32A of the 1987 Act as:

      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

Injury Liability

  1. The injury for which the Worker is receiving weekly payments of compensation is to the L4/5 and L5/S1 joints in their back. There is no dispute in the information before me in relation to this injury.
  2. The Worker consulted their treating neurosurgeon in November 2017 regarding an increase in their pain levels. The treating neurosurgeon ordered images of the Worker’s back. The Worker returned for a review with the treating neurosurgeon in November 2017 and he concluded that the fusion of their L4/5 and L5/S1 joints had placed strain on the levels above them, being the L2/3 and L3/4 levels. The treating neurosurgeon believed that the Worker’s pain was arising from the symptoms that had developed in those areas, the cause of which he attributed to the spinal fusion.
  3. The treating neurosurgeon indicated in a letter to the Worker’s treating doctor that he considered that they had no capacity for employment following the review in November 2017. The treating neurosurgeon did not directly attribute the Worker’s lack of capacity to their new pathology, however, the wording of the letter strongly indicates that the problems arising from the L2/3 and L3/4 joints were the cause of a reduction in their work capacity.
  4. A notice, said to be in accordance with section 60 of the 1987 Act was sent to the Worker. The notice indicates that a request by the treating neurosurgeon to conduct facet joint blocks on the Worker’s L2/3 and L3/4 joints was declined as the Insurer was not satisfied that such treatment was reasonably necessary. The notice does not indicate that the Insurer has declined liability for the injury itself.
  5. The Insurer has submitted that the Worker’s current incapacity arises from an injury (to the L2/3 and L3/4 joints) for which liability has not been accepted.
  6. The information contained in the letter from the treating neurosurgeon indicates that it is his professional opinion that the pain symptoms that the Worker has developed in their back relate directly to the L4/5 and L5/S1 joints and the adverse effect that the fusion of those joints has had on other parts of their body. The medical information before me is that the Worker’s current incapacity arises from the adverse effects of an undisputed injury that is the subject of the claim in this matter. I will therefore consider the treating neurosurgeon’s opinion as to the Worker’s capacity for employment along with the other relevant information that is available.

Certificates of capacity

  1. The most recent certificate of capacity issued for the Worker is dated XX December 2017. The certificate was presumably issued by the Worker’s treating doctor. Although his name does not appear on the document the signature looks similar to those on other certificates of capacity.
  2. The treating doctor indicated that the Worker has no capacity for employment of any kind until February 2018 which is the date of the next proposed review.
  3. The treating doctor has made the following observations:

      “analgesia ongoing, nsaids, physiotherapy to continue, as per specialist recommendation: needs revision surgery as per imaging results (non-union). Non-union L5-S1 joint as per bone scan, subsequent imaging confirming the same. Recommendation from surgeon as unfit to work temporarily for nerve block and cortisone injection”.

  1. In January 2018 the Insurer issued a letter to the Worker which purported to be a notice in accordance with section 74 of the 1998 Act. The Insurer informed the Worker that liability for the change in capacity from 15 hours of work per week to having no capacity for employment was declined. The Insurer did not indicate the section of any Act under which it was declining such liability. The reason provided for the declinature, was that the Insurer had alternative information as to the Worker’s capacity for employment.
  2. While the above decision purports to be a notice under section 74 of the 1998 Act, this section is a provision that sets out requirements for giving notice in relation to any aspect of a claim that is disputed. The Insurer has not specified the provision/s of the 1987 or 1998 Act under which the dispute for a so called “downgrade” has arisen.
  3. The notice, dated January 2018 clearly refers to a decision as to the Worker’s current work capacity and competing information as to their work capacity. These are matters that are work capacity decisions in accordance with section 43(1) of the 1987 Act. The form of the notice, that is a notice that purports to be under section 74 of the 1998 Act, does not change the nature of the actual decision, being a work capacity decision.
  4. I will therefore proceed to conduct the work capacity decision with regard to all of the information before me, including the certificate of capacity issued by the treating doctor in December 2017.
  5. There are numerous other certificates of capacity that pre-date the certificate of December 2017. Each of these was issued prior to the most recent set of scans that were ordered by the treating neurosurgeon.
  6. Although previous certificates of capacity have also referred to “Non-union L5-S1 joint as per bone scan”, the treating doctor has added the words “subsequent imaging confirming the same” to the most recent certificate of capacity. I consider that this indicates that the treating doctor has viewed the images of the Worker’s spine and that he has formed an opinion that is different to that of their specialist who noted that there was a solid fusion at the L5/S1 level.
  7. The treating doctor has also noted that the treating neurosurgeon considered that the Worker had no capacity for employment.
  8. On my reading, the treating doctor has concluded independently of the treating neurosurgeon that the Worker has no current work capacity and that he has exercised his professional expertise in doing so. He has noted that his colleague has reached the same conclusion.

Other reports

  1. The only other report that is available to me from the period after the scans of the Worker’s back were conducted is a functional capacity evaluation, performed by the occupational therapist from an occupational rehabilitation provider. The occupational therapist holds a BA Occupational Therapy.
  2. The occupational therapist has noted that consent was not obtained from the Worker’s treating doctor to conduct the test. There is also no reference to the occupational therapist having been briefed as to the developments in relation to the Worker’s injury following the scans that were done in November 2017.
  3. Following the assessment, the occupational therapist concluded that the Worker had capacity to work in some type of employment for 4 hours per day, 5 days per week in employment where they are able to restrict lifting to 3kg between waist and shoulder, undertake bilateral carrying of up to 4kg intermittently, conduct unilateral carrying of 3kg with the right hand and 2 kg with the left hand and push and pull up to 7kg.
  4. The occupational therapist is not medically qualified, they were not in possession of and had not discussed the Worker’s latest test results with any of the Worker’s treating doctors and they observed the Worker on a single occasion in testing conditions, that is conditions that do not mirror those in an actual work place and work day.

Findings

  1. I am most persuaded by the opinions of the treating doctor and neurosurgeon in this matter. Each of these doctors has had access to the Worker’s most recent scans, they have treated the Worker for a number of years and have had the ability to observe their capacity over that period. I therefore consider that they are in a superior position to the occupational therapist to determine the Worker’s capacity for employment.
  2. Accordingly, I find that the Worker has no current work capacity in accordance with the definition under section 32A of the 1987 Act as set out above.

Special requirements for continuation of weekly payments after second entitlement period (after week 130)

  1. Section 38(2) of the 1987 Act provides that an entitlement to weekly payments after the second entitlement period is only available to a worker with no current work capacity if they meet the following special requirements:
  2. A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.

  3. I have found that the Worker has no current work capacity and I am satisfied that they will continue indefinitely to have no current work capacity until such time as their medical condition is determined to have improved to a level at which they may return to suitable employment.

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