Our Reference: 039/18
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 “current work capacity” as defined by section 32A of the 1987 Act.
- Employment as a process worker constitutes “suitable employment” for the worker.
- The worker’s entitlement to weekly payments of compensation is calculated at $72.55 per week.
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 $72.55 per week under section 37(3) of the 1987 Act, from February 2018 (subject to any notice period required under section 54 of the 1987 Act).
- In March 2015, when reaching to scan a barcode whilst driving a forklift, the worker sustained an injury to their lower back. The worker has been receiving weekly payments of compensation for an incapacity for work as a result of the injury.
- In February 2018, the Insurer decided that the worker had current work capacity and process worker constitutes suitable employment, and determined their entitlement to weekly payments of compensation to be $14.42 under section 37(3) of the 1987 Act, effective from June 2018.
- In March 2018, the worker referred that decision for internal review by the Insurer.
- In April 2018, the Insurer affirmed its original work capacity decision and sent notice of the decision upon internal review to the worker the same day.
- In May 2018, the Authority received the worker’s application for merit review. The application complied with the requirements of section 44BB of the 1987 Act.
- 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: section 44BB(3)(e). Recommendations are binding on the Insurer and must be given effect to by the Insurer: section 44BB(3)(g).
- The documents considered for this review are the worker’s application for merit review 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.
- I have read and considered the worker’s submissions made in support of their application for merit review. In summary, the worker submits:
- Most process worker jobs state that the worker must be able to lift up to 20kg and with their restrictions they will not be considered for the job. They are either not qualified or not suited for the position.
- Job description and market analysis states frequent twisting, bending, stretching and squatting is required and the worker’s current WorkCover certificate states that bending and twisting can aggravate their back.
- They would be a risk for jobs as a process worker because the recruitment agencies are aware of their restrictions and would not be willing to put their name forward for the role.
- They are regularly applying for jobs and with their restrictions people are very reluctant to give them a chance.
- I have also read and considered the Insurer’s submissions and in summary it submits in reply:
- Light to medium process worker (in cosmetics, electrical and poultry) is appropriate suitable employment for the worker. The employer contacts confirmed that there is minimal to no bending required as the role is completed in seated position at bench height, with ability to stand and sit as required and stools are provided.
- The worker’s 10 years’ experience in warehouse picking and packing and their skills are considered suitable for the process worker role and it is within their functional abilities.
- The worker recently worked with a furniture store and they did not disclose hours or days worked, and submits that continued employment was unsuccessful due to behavioural reasons and not due to their capacity to work.
- It considers that the worker also has the required skills to perform the role of warehouse administrator.
- In June 2018, the Authority provided the worker the opportunity to make further written submissions in relation to the issues in dispute in this merit review.
- In June 2018, the worker responded as follows:
- In June 2018, the Insurer responded to the worker’s email and reiterating its submissions in relation to suitable employment.
As per your request in the email:
Thank you for your time in considering this matter for me.
In June 2018, the Insurer responded to the worker’s email and reiterating its submissions in relation to suitable employment.
1 – I agree with the capacity of full hours as certified by the treating doctor as per functional tolerances stipulated in current doctor’s certificate.
2 – The position of Warehouse Administration has been previously reviewed in a merit review by SIRA and overturned last year. I am disputing the position of Process Worker as suitable employment as per the reasons outlined in my letter which was sent with my application for merit review.
3 – I am requesting that my weekly payments continue while I continue to seek employment.
Nature of merit 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 choose to refer for review by the Authority, in accordance with section 44BB of the 1987 Act, that the Authority has jurisdiction to review.
Current work capacity and sutiable employment
- In March 2015, the worker sustained an injury to their lower back during the course of their employment with the pre-injury employer.
- In assessing whether the roles are suitable employment for the worker, I am required to have regard to the nature of their incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B).
- The physiotherapist in her closure report dated September 2016 reports that the worker tolerated lifting 15kg from floor to chest height with repetition and trialled lifting 18kg from floor to chest height with repetition, however reports that this will require review by their surgeon.
- The neurosurgeon performed microdiscectomy on September 2015. In a progress report dated November 2016, the neurosurgeon recommends that the worker lift no more than 15kg at any stage and “happy for them to squat but not to bend repetitively or frequently”.
- The orthopaedic surgeon undertook an independent medical examination in February 2017. The orthopaedic surgeon in his report of even date provides background to the injury and in relation to the worker’s capacity for employment submits that he considers “the worker fit for suitable work activity that does not involve repeated bending or lifting. The worker could manage suitable benchwork or sedentary work. A lifting limit of 15kg would be reasonable”.
- The treating doctor has issued the WorkCover NSW – certificates of capacity before me and lists the diagnosis as “low back pain, right paramedian disc extrusion L4/5”. Since at least February 2018, the treating doctor has certified the worker as having capacity for some type of employment for normal hours per day normal days per week with the following capabilities:
|Lifting/carrying||15 kg as able|
|Sitting||60 mins as able|
|Standing||60 mins as able|
|Pushing / pulling||20 kg as able|
|Bending/twisting/squatting||repetitive bending and twisting of spine can aggravate the pain, able to squat|
- The Insurer accepts that the worker’s capacity for work is in accordance with the treating doctor’s certification and I note that in June 2018 the worker advised the Authority that they agree “with the capacity of full hours as certified by the treating doctor as per functional tolerances stipulated in current doctor’s certificate”.
- I therefore accept the treating doctor’s recommendations when assessing the worker’s present inability arising from the injury and proceed on that basis.
- 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/or suitable employment.
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
- There is no dispute before me with respect to the Insurer’s decision 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. I proceed on that basis.
- 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:
- The worker completed Year 10 school certificate. They completed Certificate IV in spray painting, 12 week TAFE course to qualify as a licensed automotive air conditioning mechanic and Certificate III in warehousing. The worker holds a Class C drivers licence and an LF forklift ticket.
- Employment as a process worker and warehouse administrator has been identified as suitable for the worker.
- An occupational rehabilitation provider conducted labour market analysis and produced reports dated June 2017 and December 2017. Before me is also a vocational assessment report dated January 2017 and a functional evaluation report dated February 2017.
- The worker’s employment history is outlined in the vocational assessment report dated January 2017 as follows:
- Upon review of the information before me, I am satisfied that the role of process worker constitutes suitable employment for the worker under section 32A of the 1987 Act, for the reasons to follow.
Suitable employment, in relation to a worker, means employment 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.
|Forklift driver / picker packer||>10 years|
|Car detailer||>10 years|
|Tow truck driver||>5 months|
|Spray painter||>2 years|
|Apprentice spray painter||>2 years|
|Apprentice cabinet maker||>5 months|
Process worker (light)
- The labour market analysis report dated December 2017 states that the work of a process worker can be characterised by the following duties:
- sourcing, weighing and mixing raw materials, and loading into machines
- wrapping products, and filling, labelling and sealing containers by hand and machine
- storing and stacking finished products, and cleaning machines and work areas
- inspecting and grading products
- assembling components and subassemblies for further processing and to make finished products
- A rehabilitation consultant describes the functional requirements of the role according to Accident Compensation Corporation (ACC). The role reportedly has light to heavy physical demand level depending on the type of industry for the process work.
- The rehabilitation consultant contacted three employers advertising for a process worker role and the representatives reported:
- Based on the worker’s employment history, their transferable skills are reported to include attention to detail, knowledge of paints, colour matching and mixing, customer service, forklift operation, general warehousing, warehouse systems and procedures, voice picking, driving and basic car knowledge.
- The rehabilitation consultant submits that the worker’s work history has been characterised by undertaking tasks in a process manner in their pre-injury role as forklift driver (picker / packer) where they followed due process to ensure the accurate movement of goods within the warehouse.
- I note the worker’s submission that they do not believe that the role of process worker constitutes suitable employment for them because as a result of their injury they continue to suffer ongoing restrictions. The worker further states that they have no experience in performing such work and would be unable to fulfil the functional demands as it would require lifting up to 20kg and frequent twisting, bending, stretching and squatting which would aggravate their back.
- 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.
- I note the treating doctor in his latest certificate of capacity dated April 2018 certifies the worker as having capacity for some type of employment for normal hours per day normal days per week, with lifting up to 15kg, sitting / standing 60 minutes, pushing / pulling up to 20 kg and no repetitive bending / twisting / squatting.
- Also, I note the treating neurosurgeon, orthopaedic surgeon and treating doctor’s opinions to be consistent regarding the worker’s functional tolerances, specifically their 15kg lifting ability and I accept the treating doctor’s recommendations when assessing the worker’s present inability arising from the injury.
- The treating doctor supports that the worker is suited to employment as a process worker. On February 2017, they responded to the occupational rehabilitation provider’s facsimile, which outlined the duties and the functional demands of the role, endorsing the role to be suitable for the worker. I accept that, given they have managed the worker’s injury and has had the benefit to review the worker on a regular basis.
- Further, I note as part of the labour market analysis, the rehabilitation consultant discussed the functional demands of the role and all three representatives contacted for the process worker role reported: no lifting and carrying in excess of 5kg, no pushing and pulling in excess of 3kg and bending / twisting / squatting were not physical requirements of the role as work is undertaken at bench height. The representatives also confirmed that the worker would be able to alternate posture as needed between sitting and standing and stools provided for sitting.
- In light of the comments by the employer representatives and the treating doctor’s approval, I am satisfied that the worker would be able to perform the role of process worker within their functional tolerances.
- Having regard to the duties required of the role, the expressed employer comments and the recommendations by the treating doctor, I consider that there is sufficient medical information before me to find that employment as a process worker is work for which the worker is currently suited having regard to the nature of their incapacity.
- Employer Representative 1 – finishing and packing of plastic items exiting plastic extrusion machines; 38 hours per week; no lifting greater than 5kg; work can be completed either standing or sitting, or alternate between the two; no bending, twisting or squatting required.
- Employer Representative 2 – putting together components to form assemblies and pack completed product; full time hours; lifting does not exceed 3kg; maximum standing / sitting 30 minutes; work at bench height with stools provided to sit; regular postural breaks or can be taken as required; no pushing or pulling in excess of 3kg; no bending, twisting or squatting required.
- Employer Representative 3 – placing small motor parts into plastic bags and then heat sealing the bags; full time hours; lifting 2-3kg at waist height; alter standing posture as required; allowance for postural breaks every 30 minutes of sitting; no bending, twisting or squatting as the work is completed at bench height.
- The labour market analysis report dated June 2017 states that the work of a warehouse administrator can be characterised by the following duties:
- requisitioning supplies from stock and sending orders to production departments and other firms
- confirming completion of orders and compliance with details specified, signing tally sheets and attaching to checked items
- receiving and checking purchase requests against inventory records and stock on hand
- examining orders and compiling data for production schedules
- checking inventories and preparing delivery schedules
- examining containers to ensure that they are filled, and recording quantities
- investigating and identifying supply sources and preparing and processing purchase orders
- providing price and other information about goods to prospective customers
- counting incoming stock and reconciling it with requisitions, and updating inventory and stock location records
- establishing and coordinating the operating procedures for receiving, handling, storing and shipping goods
- The role reportedly has sedentary to light physical demand level. The rehabilitation consultant reports that the worker completed a Certificate III in warehousing through their employment with the pre-injury employer.
- The rehabilitation consultant as part of the labour market analysis contacted four employers advertising for a warehouse administrator role, who reported:
- The Insurer submits that the worker has the required skills to perform warehouse administrator role and that general experience is needed in warehousing along with operational and basic computer skills. It is reported that the worker completed a 4 day workshop in Microsoft Office in June 2017 and intermediate Microsoft excel in September 2017 and given this it considers that the worker has basic computer skills.
- I note the labour market analysis report dated December 2017 reports that the worker commenced online study in office computer applications to address their lack of administrative and computer skills, which had been identified as a barrier to finding work as a warehouse administrator. The rehabilitation consultant reports that further training to develop their skills in MS Office Suite to an intermediate level was organised on the basis of labour market surveys where the worker’s background in warehousing was considered suitable, however their lack of strong computer skills was viewed as an impediment to obtaining work.
- I note the vocational assessment report dated January 2017 provides a list of duties from the worker’s previous employment and in my view the occupations essentially revolve around manual labour. Their pre-injury role as a forklift driver (picker / packer) involved picking and packing orders, operating forklift to sort and load pallets, replenish stock and stock movements within the warehouse.
- Whilst I acknowledge the worker’s background in the warehouse industry for the last 10 years and the skills and experience gained would be advantageous to the role of warehouse administrator, however the lack of relevant administrative and computer skills would be a barrier.
- I accept that the worker would have learnt some skills whilst undertaking the courses, however I am not persuaded that these skills are necessarily transferable to real work in the employment market where employer contacts have reported that the role predominantly involves general administrative and computer based tasks.
- This does not satisfy me that the worker possesses some of the prerequisite skills or work experience required for the warehouse administrator role which the employer contacts report involves general administrative tasks, data entry and undertaking computer based tasks.
- ‘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 age, education, skills and work experience.
- I am therefore not satisfied that employment as a warehouse administrator constitutes suitable employment for the worker.
- Employer representative 1 – process supplier invoices, book receiving and delivery time slots, coordinate run sheets, liaise with customers and resolve problems when need, report to management about issues and outcomes; 38 hours per week; no lifting required as administrative role; frequent standing and walking around warehouse; frequent sitting when entering data and undertaking other computer based tasks.
- Employer representative 2 – data entry, customer service, despatch stock; 38 hours per week; no lifting required; frequent standing and walking around warehouse; frequent sitting when undertaking computer based tasks.
- Employer representative 3 – undertake general administrative tasks in the receiving and despatching of goods to both internal and external customers; 38 hours per week; lifting up to 5kg; frequent standing and walking around warehouse; frequent sitting when undertaking computer based tasks; no twisting or bending activity.
- Employer representative 4 – undertake general administrative tasks in the operation of a warehouse; 38 hours per week; no lifting is required as the work is office based; potential for frequent standing and walking around warehouse; frequent sitting when undertaking computer based tasks.
Finding on 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, I am satisfied that the role of process worker constitutes suitable employment for the worker.
Finding on current work capacity
- Given the worker has a present inability arising from an injury such that they are not able to return to their pre-injury employment but is able to return to work in suitable employment, I therefore find that the worker has “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 June 2018 that the worker has been in receipt of 101 weeks of weekly payments of compensation.
- On the basis of this information, the worker’s entitlement to weekly payments of compensation currently falls in the second entitlement period and is to be determined and calculated in accordance with section 37 of the 1987 Act, as follows:
The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:
(b) MAX − (E + D),
whichever is the lesser.(a) (awe>
Calculation of entitlement
- Section 35 of the 1987 Act sets out the factors to determine the rate of weekly payments:
- The worker is currently not working so they have no current weekly earnings. Therefore, the value of “E” is the amount that they are able to earn in suitable employment.
- I note that the occupational rehabilitation provider’s labour market analysis report dated December 2017 reports that based on comments by employer contacts, a process worker working full time hours on average will earn $777.86 per week (which equates to $20.47 per hour).
- I have had regard to the information provided in the labour market analysis report and I accept it in assessing the worker’s ability to earn in suitable employment.
- I have found that the worker is suited to employment as a process worker. In making this finding, I have had regard to the nature of the worker’s incapacity, work experience, skills, education and to any occupational rehabilitation services that have been provided to them.
- In light of the above and in accordance with section 37(3) of the 1987 Act, the worker is entitled to weekly payments of compensation calculated as follows:
- I therefore find the worker is entitled to weekly payments of compensation in the amount of $72.55 per week, from February 2018 (subject to any notice period required under section 54 of the 1987 Act).
AWE means the worker’s pre-injury average weekly earnings. The Insurer determined the worker’s AWE is currently $1063.02. The worker does not dispute this decision of the Insurer.
D is the value of any non-pecuniary benefits. The Insurer decided the value is $0.00 and this has not been disputed.
MAX means the maximum weekly compensation amount. The maximum weekly compensation amount “MAX” does not apply in this case because the rate of (AWE x 80%) – (E + D) results in a lesser calculation.
E means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:
(a) the amount the worker is able to earn in suitable employment,
(b) the workers current weekly earnings.
(AWE × 80%) − (E + D)
($1063.02 x 80%) – (E + D)
$850.41 - $777.86 = $72.55
Merit Review Service
Delegate of the State Insurance Regulatory Authority