Our Reference: 036/18
Date of review:
Findings on review
- The following are findings made by the State Insurance Regulatory Authority (the Authority) on review and are to be the basis for the Insurer’s review decision under section 44BB(3)(e) of the Workers Compensation Act 1987(the 1987 Act).
- The worker has “no current work capacity”, as defined in section 32A of the 1987 Act.
- The worker’s entitlement to weekly payments of compensation is to be calculated under section 37(1) of the 1987 Act.
Recommendations based on findings
- 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.
- The worker’s entitlement to weekly payments of compensation is to be determined by the Insurer in accordance with the above findings, from February 2018 (subject to any notice period required under section 54 of the 1987 Act).
- In March 2015, the worker sustained an injury to their right wrist during the course of their employment as a Scientific Officer with the pre-injury employer. The worker has been receiving weekly payments of compensation for an incapacity for work as a result.
- In February 2018, the Insurer determined the worker’s entitlement to weekly payments of compensation to be $0.00 in accordance with section 37 of the 1987 Act, on the basis that:
- They have capacity for employment for 40 hours per week
- The vocational options of Pathology Laboratory Team Leader and Research Officer are suitable employment
- The worker is able to earn $1,519.00 in suitable employment
- The amount of their pre-injury average weekly earnings is $1,875.12
- They are unable to engage in employment as a Scientific Officer without substantial risk of further injury
- The legislative framework governing work capacity decisions and reviews is contained in the:
- Section 43 of the 1987 Act describes a ‘work capacity decision’. An injured worker may refer a work capacity decision for merit review by the Authority under section 44BB of the 1987 Act. The Authority is to notify the Insurer and the worker of the findings of the review and may make recommendations to the Insurer based on those findings under section 44BB(3)(e). Recommendations are binding on the I Insurer and must be given effect to by the Insurer under section 44BB(3)(g).
- The documents considered for this review are the application for merit review by the worker and the Insurer’s reply form, the documents listed in and attached to those forms, and any further information provided to the Authority and exchanged between the worker and the Insurer.
- In summary, the worker in their application for merit review submits:
- The Insurer has decided to stop their weekly benefits on the basis of vocational assessment by the occupational rehabilitation provider.
- The treating doctor clearly states that they have to follow the WorkCover certificate of capacity restrictions when looking for vocational options as a scientific officer, pathology laboratory team leader or research officer.
- The treating doctor and three hand surgeons advise that they are to work in rotating shifts, take micro-breaks, work less on strenuous benches like urine and genital swab benches. They propose these recommendations be put in place by the pre-injury employer.
- They received an injury management plan from the injury management consultancy dated June 2016 which states that the advice from various doctors and specialists is correct and their employer did not follow the injury management plan.
- The pre-injury employer is one of the biggest pathology providers and research laboratories in Australia and if they cannot find a suitable job or accommodate the work injury they sustained, the worker believes it is not fair to tell them to find a similar type of job in another company. They should be able to accommodate their injury and find suitable duties.
- The worker has capacity for 40 hours per week as per the most recent WorkCover certificate of capacity dated February 2018 with restrictions: Avoid high repetition and prolonged activities to minimise the risk of recurrence; Avoid working on the same bench repeatedly for the full week especially, urine and genital culture benches; To have micro breaks on regular basis during the day.
- It relies upon the vocational labour market analysis report dated March 2017 and submits the roles of Research Officer and Pathology Laboratory Team Leader are suitable employment option for the worker pursuant to section 32A of the 1987 Act. The treating Doctor approved the roles being suitable employment in December 2017.
- Accordingly, this is in line with their physical capacity as per the WorkCover NSW Certificate of Capacity dated February 2018, and they have the functional and vocational skills for the roles of Laboratory Team Leader and Research Officer which it deems to be suitable.
- The worker at the time of the internal review decision had received 88 weeks of weekly compensation payments. The worker is currently in the second entitlement period and they have been assessed under section 37(3) of the 1987 Act to be $0.00.
- They have the capacity for some type of employment for 40 hours per week with restrictions.
- They have worked in pathology for over 30 years and has never worked as a Research Officer, Quality Control Officer or any type of job similar to this. A pathology laboratory does not do research and it’s only a diagnostic facility that produces pathology results. Since graduating university some decades ago, they have not done research or worked in a quality control team. They have tried hard to obtain a role in both these areas over the last two years however as they do not have any experience or qualification, no employer has approached them or hired them. Also, it must be noted that they were not a team leader at the pre-injury employer.
- They disagree with the Insurer regarding earning $2057.60 each week in suitable employment. They have been applying for jobs as a Research Officer and Quality Control Scientist for the last 2 years, but as mentioned they have no experience in these fields and no qualifications. Also without experience, it will be near impossible to receive a senior salary of $2057.60 per week.
- They believe the Insurer has not taken the time to look at their situation, understand their industry and what roles they can perform.
- They have the ability to work as a Scientific Officer with the restrictions stated by their specialists and treating doctors regarding the risk of further injury. However, their current employer will not provide them with this. If their current employer who is the biggest pathology company in Australia cannot find suitable duties then they are not sure where else this can be found.
- They can work at the pre-injury employer if they follow the working conditions and work injury requirements, however to date they have repeatedly dismissed any opportunity to allow the worker to do this and have not followed the return to work plan. The Insurer claims that they can get jobs that they are not qualified for and their current employer’s decision that they cannot accommodate their injuries shows that they should continue to receive weekly benefits.
Nature of the review
- This is a merit review under section 44BB(1)(b) of the 1987 Act of a work capacity decision of an Insurer. It is not a review of an Insurer’s procedures in making a work capacity decision. 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.
- I note that it is only those decisions that the worker chooses to refer for review by the Authority, in accordance with section 44BB of the 1987 Act, that the Authority has jurisdiction to review.
- The worker has referred the following work capacity decisions of the Insurer for review by the Authority:
(b) A decision about what constitutes suitable employment for them
(c) A decision about the amount they are able to earn in suitable employment
(d) A decision about the amount of their pre-injury average weekly earnings
(e) A decision about whether they are, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment
(f) A decision to reduce their entitlement to weekly payments of compensation to nil.
Further, the reviewer has formed the preliminary view that they are not able to conduct a merit review of decision (d) – a decision about the amount of your pre-injury average weekly earnings or current weekly earnings. The reviewer has formed that view because it appears that decision (d) has not been the subject of internal review by the insurer as required by section 44BB(1)(b) of the Workers Compensation Act 1987 (‘the 1987 Act’). In your email to the insurer dated February 2018 requesting for an internal review, it appears that you did not request a review of the amount of your pre-injury average weekly earnings. So, the reviewer’s preliminary view is that they are only able to review the decisions that have been the subject of internal review. You are invited to make written submissions about whether the Authority is able to conduct a merit review.
In my email dated February 2018 requesting for an internal review, I did not request a review of the amount of pre-injury average weekly earnings because at the time the PIAWE was correct ($1875.82, as seen in the attached letter dated XX/02/2018). The amount was then later changed to $1466.01 after I requested the internal review, as seen in the letter dated XX/04/2018. There was no reason given as to the change and the review was already under process before this change, I believe this was a mistake by the insurer and thus asking it to be reviewed now by your authority.
I do want to make a note of the other inconsistencies to prove that the calculations the insurers have made in the past are not reliable and inconsistent. Please see the attachment regarding pay slips from the pre-injury employer. You can see that sometimes I get 80% of PIAWE i.e. $3000.26, and then sometimes I get 80% of my PIAWE of $2345.62. It is not consistent at all. Further to this, please see the attachment regarding a letter dated XX/02/2017 received from the internal review officer from the injury management consultancy. It clearly says my PIAWE $1875.012.
Current work capacity and suitable employment
- In assessing whether the worker has “current work capacity” or “no current work capacity”, I am required to refer to the definitions under section 32A of the 1987 Act:
- In order to determine whether the worker has current work capacity, I am required to consider whether they are able to return to work in their pre-injury employment and suitable employment.
- In March 2015, the worker sustained an injury to their right wrist during the course of their employment as a Scientific Officer with the pre-injury employer.
- Since migrating to Australia in the 1990s, the worker has only worked in the pathology industry.
- The worker has a present inability arising from an injury such that they are not able to return to work in their pre-injury employment, for the reasons to follow. Indeed, the medical information supports that view.
- In order to determine whether the worker has current work capacity, I am required to consider whether they are able to return to work in “suitable employment”. 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:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.
- The worker is of mature age and migrated to Australia in the 1990s. They completed Bachelor of Science and Masters of Microbiology overseas which is comparable to the educational level of an Australian Bachelor degree as assessed by Department of Employment, Education and Training.
- Employment as scientific officer, pathology laboratory team leader and research officer has been proposed as suitable employment for the worker. A rehabilitation service provider addresses these roles in its vocational assessment report dated March 2017.
- The worker’s employment history is outlined in the vocational assessment report dated March 2017 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
- 2006 – present: Scientific Officer
- 2005 – 2006: Scientific Officer
- 1995 –2004: Senior Scientific Officer & Supervisor
- 1995 –1995: Scientific Officer (voluntary work)
Certificate of capacity
As per hand surgeons and specialists to avoid high repetition and prolonged activities to minimise the risk of recurrence.
It is advisable to avoid working on the same bench repeatedly for the full week esp. urine and genital culture benches.
To have micro breaks on regular basis during the day. As per hand surgeons.
The worker returned to see me today. Their symptoms are somewhat improved since the cortisone injection in April but they have still not returned to work because there has been difficulty negotiating an appropriate position for them to return to.
On examination they have a good range of motion in the wrist and possibly some light swelling on the ulnar side. The wrist is no longer irritable. I have advised avoiding high repetition and prolonged activities to minimise the risk of recurrence.
- The worker to return to work in suitable duties as agreed in May 2017 and this return to work program is expected to complete in 14 weeks. The worker to conduct a work trail as part of the return to work arrangement and then the return to work program is expected to complete in 16 weeks
- The employer to engage the rehabilitation consultant to facilitate and supervise the return to work rehabilitation
- The treating doctor, approves the return to work plan and the worker to continue to see her, the hand and wrist surgeon, and the treating hand surgeon for ongoing management
- The treating doctor and the hand and wrist surgeon to advise the worker and the employer if they are fit to return to their pre-injury duties after the return to work in suitable duties arrangement, which is expected to complete after 14 to 16 weeks
- The worker to consider seeking alternative employment with an alternative employer if the treating doctor and the hand and wrist surgeon advise the worker and the employer that they are unable to return to their pre-injury duties after the suitable duties arrangement.
- They should avoid any sustained, forceful or awkward right hand gripping actions, especially if there was to be any repeated nature involved
- Micro-pause breaks should be used whenever physically active, to interrupt the possible development of muscle tightness that could otherwise reduce normal blood flow and result in fatigue symptoms developing
- Frequent gentle stretching of the forearm musculature should be carried out whenever physically active with any manual handling using either hand.
Microbiologist / Scientific Officer (pre-injury employment)
- Employer Representative 1 - plate reading and recording test results, media preparation, water testing, environmental testing, finished product and raw material testing, microorganism identification, report writing.
- Employer Representative 2 - assist in the assessment/development of diagnostic tests in the immunology section, expertise in bio banking and implement a system for serum bio banking, assist with immunology register research projects, assist with research projects involving immunology testing, involved in the educational activities of the department, perform immunology testing as required.
- Employer Representative 3 - investigate the chemical structure of living cells and their isolated components, organs and tissues in humans, animals, plants and microorganisms, examine microorganisms such as bacteria, fungi, and their enzymes and use the knowledge gained to create, develop and improve existing products, material and processes.
Pathology Laboratory Team Leader
- Employer Representative 1 - clinical result validation, staff training and supervision, work with microbiology instrument platforms.
- Employer Representative 2 - proficient management of the Microbiology Laboratory division, maintain safety requirements across the business, provide technical leadership, industry knowledge and guidance to the teams, review and assess laboratory requirements for equipment upgrades and implantation of new technology.
- Employer Representative 3 - develop the facility and develop and deliver the Laboratory’s business plans, responsible for full oversight of the Laboratory’s operations, administration and business development, and provides high-level technical expertise to support the Laboratory’s research priorities.
- Employer Representative 1 - coordinate operational, administrative and project management support across all stages of the research project lifecycle, provide reporting metrics and advice at all stages.
- Employer Representative 2 - develop and deliver conference presentations, management of data and data analysis, present and communicate data and other findings, develop and evaluate projects.
- Employer Representative 3 - respond to enquiries from researchers and staff across the organisation while providing comprehensive administrative support to the Research Officer and Director of the unit.
Finding on suitable employment
- To determine whether the worker is physically suited to the role, I must have regard to the nature of their incapacity and the details provided in the medical information.
- The treating doctor supports that the worker is suited to employment as a scientific officer, pathology laboratory team leader and research officer. In December 2017, they responded to the rehabilitation service provider’s facsimile, which outlined the functional demands of the roles, endorsing all three roles to be suitable for the worker. I note that the treating doctor in relation to frequent repetitive hand and finger movements notes “not able to work in high repetitive benches”, “unable to perform repetitive hand/wrist movements” and “follow W/C certificate”.
- The treating doctor in the latest certificate of capacity dated February 2018 notes that the worker is to avoid high repetition and prolonged activities to minimise the risk of recurrence, avoid working on the same bench repeatedly for the full week esp. urine and genital culture benches and to have micro breaks on regular basis during the day.
- The employer representatives reported that “Frequent hand and finger movement required in computer work and writing reports and handling general laboratory equipment”. The rehabilitation consultant reports that the employers advised that there are opportunities of flexibility of movements.
- I have not found the labour market contacts to be persuasive. While the employers contacted adequately addressed the worker’s education, skills and work experience required of the roles, in my view, they failed to adequately address the physical requirements of the role based on the worker’s functional tolerances.
- The contacts do not go as far as to address the worker’s functional tolerances, being, avoid high repetition and prolonged activities to minimise the risk of recurrence, avoid working on the same bench repeatedly for the full week and micro breaks on regular basis during the day.
- Given that the labour market contacts do not adequately address the functional requirements for each of the roles, I have relied upon the information provided to the treating doctor in December 2017 and his specific comments regarding the worker’s functional requirements, which clearly contravene the balance of medical opinions before me.
- I am required to assess whether there is real employment in the labour market (regardless of whether it is generally available), having regard to the requirements set out in the definition of suitable employment under section 32A of the 1987 Act.
- Whilst the worker can perform the role of Scientific Officer and Pathology Laboratory team leader when having regard to their education, skills and work experience, I am not satisfied that they can perform the roles from a functional perspective given the nature of their incapacity.
- The role of a Research Officer requires research skills and upon review of the worker’s work experience and transferable skills, I do not believe that the worker is currently suited to the role of research officer because they do not have direct experience working in a research environment and grant funding processes, working closely with researchers.
- ‘Suitable employment’ means employment in work for which the worker is currently suited and I am not persuaded that the employment identified is employment in work for which the worker is currently suited having regard to their incapacity and the details provided in medical information.
- While the medical information before me supports that the worker has some physical capacity for work, I am not satisfied it adequately supports they are able to return to work in “suitable employment”.
- In considering the above and having regard to the factors in the definition of suitable employment under section 32A of the 1987 Act, on balance, the information currently before me does not support that the worker is able to return to work in suitable employment.
Finding on current work capacity
- Given that the worker has a present inability arising from an injury such that they are not able to return to work in their pre-injury employment or in suitable employment, I therefore find that the worker has “no current work capacity” as defined by section 32A of the 1987 Act.
Entitlement periods for ongoing weekly payments
- The following provisions of the 1987 Act provide the basis for determination and calculation of a worker’s weekly payments entitlement:
- Weekly payments in the first 13 weeks are to be determined in accordance with section 36 of the 1987 Act (“the first entitlement period”);
- Weekly payments in weeks 14–130 are to be determined in accordance with section 37 of the 1987 Act (“the second entitlement period”); and
- Weekly payments after the second entitlement period (after week 130) are to be determined under subsections 38(6) or (7), but only if the special requirements for continuation of weekly payments after the second entitlement period are met under section 38 of the 1987 Act.
- The Insurer indicated in its reply dated April 2018 that the worker has been in receipt of 88 weeks of weekly payments of compensation and therefore is in the second entitlement period as defined by section 32A of the 1987 Act.
- In April 2018, the Authority advised the worker that it proposed to proceed on that basis and the worker has not provided any submissions to the contrary therefore I proceed on that basis.
- In February 2018, the Insurer determined the worker’s weekly payments of compensation to be $0.00 under section 37(3) of the 1987 Act.
- As I have found the worker has “no current work capacity”, I recommend the worker is entitled to weekly payments of compensation which is to be calculated in accordance with section 37 of the 1987 Act, as follows:
- The Insurer is to calculate the worker’s weekly payments of compensation accordingly, from February 2018 (subject to any notice period required under section 54 of the 1987 Act).
(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:
(AWE × 80%) − D, or
whichever is the lesser.
Merit Review Service
Delegate of the State Insurance Regulatory Authorit