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Merit review WC045/18

Our Reference: 045/18
Date of review: 

Findings

  1. The findings of the State Insurance Regulatory Authority (“the Authority”) contained in review XXXX/2017 dated April 2017 are adopted for the purposes of this review.
  2. The Authority does not make any further findings.

Recommendation based on findings

  1. The following recommendation made by the Authority is binding on the Insurer and must be given effect to by the Insurer in accordance with section 44(3)(g) of the 1987 Act.
  2. In line with the recommendation of the Authority dated April 2017 (XXXX/2017), the Insurer is to determine the Worker’s entitlement to weekly payments of compensation, in accordance with the findings of that review, from January 2017.

Background

  1. The Worker sustained an injury in January 2014 in the course of their employment with the pre-injury employer.
  2. The Insurer made a number of work capacity decisions in January 2017 resulting in the Worker’s entitlement to weekly payments of compensation being reduced to $107.95 under section 37(3) of the 1987 Act.
  3. The Worker applied for internal review of the Insurer’s work capacity decisions. On internal review, the Insurer maintained its decisions.
  4. The Worker made an application for merit review by the Authority. The application was accepted and the Authority issued its findings and recommendations on review in April 2017 (ref XXXX/2017).
  5. The Insurer issued a review decision in April 2017 giving effect to the findings and recommendations of the Authority with the following work capacity decisions.
  • Capacity to work: You have capacity to work 20 hours per week
  • Your current return to work status: You have not returned to work
  • Suitable employment: Receptionist, Customer Service Representative/Call Centre Operator
  • Your ability to earn: $500.00 gross per week
  • Your pre-injury average weekly earnings (PIAWE): $847.44 gross per week
  • Your entitlement: $177.95 gross per week
  • The Worker sent an email to the Insurer in March 2018 requesting a review of the “work capacity decision review” due to a change in their circumstances.
  • The Insurer responded in an email dated March 2018. It advised the Worker that they had “exhausted the review process and there are no further avenues to review this decision”. It also stated that the Worker’s “circumstances remain consistent” with the findings of the Authority dated April 2017 and that “a further decision is not required to be made by the Insurer at this time”.
  • In March 2018, the Worker made an application for internal review with the Insurer in the form approved by the Authority. They made similar submissions as that of their email dated March 2018 regarding a change in their circumstances.
  • The Insurer responded to the Worker in an email dated March 2018. The Insurer acknowledged receipt of the Worker’s application dated March 2018 and outlined again why it perceived the Worker’s circumstances remained consistent with the findings of the Authority. It stated that a further decision was not required from the Insurer and that given that the Worker had “exhausted the review process” the application for internal review dated March 2018 was not “valid”.
  • The Worker made an application for merit review by the Authority in April 2018.
  • 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.

    Documents considered

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

    Submissions

    1. In the application for merit review, the Worker makes the following submissions:
      • Since the work capacity decision, they have enrolled in a TAFE course, approved by the Insurer, as they do not have any current qualifications to work in the fields suggested by the “last WCD [work capacity decision]”. The course is 3 days full time, which also requires additional study and work from home.
      • They attend TAFE 15.5 hours per week, and studies 12 hours per week.
      • Due to their injuries, they cannot work or earn as set out in the last work capacity decision.
      • The injuries to their shoulder mean they need breaks regularly and the work takes them longer. Their current WorkCover certificates only allow them to work up to 25 hours per week and they believe their TAFE studies should be included as their efforts to find work as they cannot work as well as do TAFE as per their medical certificates.
    2. In the reply to the Worker’s application for merit review, the Insurer provides a background to the dispute and reviews undertaken to date and makes the following submissions:
      • The Insurer confirms the Worker did not proceed to a WIRO review following the merit review of the work capacity decision.
      • The Worker’s treating doctor has certified the Worker with capacity to work 25 hours per week since October 2017 and they continue to maintain that capacity.
      • The Worker successfully obtained casual employment with a jeweller in November 2017 in the Christmas period and worked up to approximately January 2018. During their employment, they demonstrated on two occasions the capacity to work above their certified 25 hours without reporting any issues.
      • Following the termination of their employment, the Worker was offered further support with their return to work by the Insurer as part of the My Future Program. The Worker was offered voluntary retraining as part of this program, and they were subsequently enrolled in a Certificate IV in Business Administration from February 2018 to October 2018.
      • It confirms that the Insurer has not made any further work capacity decision since the previous merit review. It considers that the review process has already been undertaken in relation to the work capacity decision.
      • The Worker’s capacity remains consistent or greater than it was at the time of the previous merit review. The Worker has demonstrated their ability to both independently job seek and as well as work, through their Christmas casual employment with a jeweller.
      • The Worker undertaking voluntary re-training does not change their functional capacity or the suitability of the vocational options that were previously identified and then maintained by merit review. It is considered that their re-training isn’t a pre-requisite for the job options that have already been determined to be suitable and maintained by merit review.
    3. In May 2018, the Worker’s legal representatives, made the following submissions in respect to the Authority’s jurisdiction to review the matter:
      • Reference is made to the Insurer’s email of March 2018 and it is submitted that the Insurer did make a further internal review decision. That review was that the Worker’s circumstances remain consistent with its previous decision.
      • The Authority has power to review.
      • The Worker has capacity to work 25 hours per the previous work capacity decision. The working week is 38 hours per week. The worker attends TAFE 3 days per week for 15.5 hours and studies/assessments of 12 hours per week, totalling 27.5 hours per week. To then be available to work 25 hours per week total a combined 52.5 hours per week. This is a change in circumstances. It has been internally reviewed and therefore a merit review is available to the Worker.
    4. In May 2018, the Insurer made the following submissions in respect to the Authority’s jurisdiction to review the matter:
    • It is not contested that the Worker did request an internal review of their work capacity decision in March 2018. However, it is confirmed that the work capacity decision was already reviewed internally and through merit review in April 2017. The Worker is not entitled to have that decision reviewed internally again and to the Insurer’s understanding the review process for the work capacity decision has been exhausted.
    • It is contended that the response to the Worker about their claim as per the email that was sent to them in March 2018 does not constitute an internal review as the legal representatives are implying in the submissions.
    • While the Insurer does not believe that the Authority has jurisdiction, it would also like to address the legal representative’s submission in relation to the Worker’s capacity being reduced because of time they are spending retraining. The fact that the Worker is enrolled in retraining does not reduce their capacity, rather they are demonstrating capacity through their participation.

    Reasons

    Nature of merit review

    1. This matter involves a merit review of the work capacity decision of the Insurer in accordance with section 44BB(1)(b) of the 1987 Act.
    2. The review is not a review of the Insurer’s procedures in making the work capacity decision and/or internal review 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.
    3. The Authority is only able to review the work capacity decisions of an Insurer that are referred for review by a worker in accordance with section 44BB.
    4. Section 43(1) of the 1987 Act describes the types of work capacity decisions that can be made by an Insurer.
    5. The Worker requests in their application for merit review and the Authority confirmed in an email dated December 2017 that they seek that the Authority review the following work capacity decisions of the Insurer:
    • Decision about their current work capacity
    • Decision about what is suitable employment for them
    • Decision about whether, as a result of your injury, you are unable (without substantial risk of further injury) to engage in employment of a certain kind because of the nature of that employment
    • Any other decision that affects their entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to them on the basis of any of the above decisions.
  • Accordingly, the Insurer’s decisions in relation to ability to earn in suitable employment and the amount of the Worker’s PIAWE stands and I will proceed to review only the above two decisions.
  • Jurisdiction

    1. In its reply and the email dated May 2018, the Insurer makes a number of submissions in relation to the Authority’s jurisdiction to conduct a review following the Worker’s application for merit review dated April 2018. The Insurer submits that the work capacity decisions dated January 2017 have already been through the review process, that the matter did not proceed to a review by WIRO and that the Insurer has not made any further work capacity decision since the previous merit review.
    2. I have considered the submissions of the Insurer. I am however satisfied that the Authority is able to conduct a merit review in response to the Worker’s recent application for merit review. I acknowledge that the Insurer has not issued a notice titled ‘work capacity decision’ since the notice dated January 2017. It did however issue a review decision on April 2017. Section 44BA of the 1987 Act defines review decisions. It stipulates:
    3. "review decision"means a work capacity decision made by an insurer as a result of a review under section 44BB

    4. A review decision under the 1987 Act, and as illustrated in the Insurer’s notice dated April 2017, contains work capacity decisions. The Authority has the power to make findings and recommendations which are binding on the Insurer and must be given effect to by the Insurer through the making of new work capacity decisions. The Insurer’s decision dated April 2017 contained new work capacity decisions to give effect to the Authority’s recommendations of the same date which resulted in the Worker’s entitlement to weekly payments being determined at a higher rate. As they are new work capacity decisions, they are reviewable. This is important because in circumstances where an Insurer does not properly give effect to the recommendations of the Authority (as the Insurer did in this case when its review decision is stated to be effective from July 2017 as opposed to January 2017 as recommended by the Authority), a worker must have an avenue of having that decision reviewed.
    5. Accordingly, I do not accept the Insurer’s submission that it has not made any further work capacity decisions since the Authority’s review.
    6. Section 44BB(1) of the 1987 Act entitles a worker to seek a review of a work capacity decision. Whether it is considered that the Insurer’s email dated March 2018 constituted the dispute having been the subject of internal review by the Insurer [section 44BB(1)(b)] or that the Insurer failed to conduct an internal review following the Worker’s application dated March 2018 [section 44BB(3)(b) of the 1987 Act], the Authority is able to proceed to conduct a merit review.

    Review

    1. In respect to the Worker’s current work capacity and suitable employment, I have considered the information before me. I am satisfied on the information before me that the findings and recommendations of the Authority on April 2017 should remain unaltered.
    2. There are a number of new WorkCover NSW certificates of capacity indicating that the Worker’s certified capacity for work has increased from 20 to 25 hours per week since late February 2018 however this increase in work capacity only adds weight to the initial merit reviewer’s findings that the Worker has current work capacity. The certificates also do not have any material effect on the previous findings of the Authority for the purposes of this review as the Worker has not elected that the Insurer’s decision in relation to their ability to earn in suitable employment be reviewed in the current application.
    3. There are also a number of new documents before me relating to employment and retraining programs the Worker is now participating in, including documents in relation to the Certificate III in Business Administration course the Worker makes a number of submissions in relation to. The Worker submits that the hours they spend in class for this course each week, combined with the study/assessment time means they are unable to work 20 hours per week in accordance with the findings of the Authority dated April 2017.
    4. I acknowledge the Worker’s submissions and the reduced time they may now have for employment. I acknowledge that there is a change in their circumstances since the Authority’s review of April 2017. However, the reduced time for work that the Worker now has is not a consideration in the assessment of suitable employment under section 32A of the 1987 Act or a factor that has any effect on the findings of the Authority dated April 2017. The employment options found to be suitable employment for the Worker, that of Receptionist and Customer Service Representative/Call Centre Operator, do not require such training or qualification.
    5. There are also a number of payslips from the Jeweller before me dated in late 2017 and early 2018. These documents also do not affect any of the findings of the Authority dated April 2017 but rather support the Worker’s ability to return to work in suitable employment.
    6. I adopt the findings of the Authority dated April 2018 and accordingly do not make any further recommendation except that the Insurer is to determine the Worker’s entitlement to weekly payments of compensation in accordance with the recommendation of the Authority dated April 2017 (XXXX/2017), that is from January 2017.

    Merit Reviewer
    Merit Review Service
    Delegate of the WorkCover Authority of NSW