Our Reference: 054/18
Date of review: May 2018
Findings on review
- The following are the findings of the Authority on review.
- The role of an occupational therapist is suitable employment for the Worker.
- The Worker has current work capacity.
Recommendation based on findings
- As the findings of the Authority are the same as those of the Insurer, there is no recommendation in this matter.
- The Worker was employed as an occupational therapist at pre-injury employer. In the course of their employment they sustained an injury to their neck and shoulder. The accepted date of injury is the date of injury.
- In December 2017, the Insurer made a series of work capacity decisions that resulted in a determination that the Worker's entitlement to weekly payments of compensation was to be reduced to $773.20 per week. The Worker was notified by way of a letter dated the day of the decision.
- The Insurer conducted an internal review of the work capacity decisions. A new decision was made in which the Worker's entitlement to weekly payments of compensation were reduced to $434.86. The Worker was notified of the outcome by way of a letter dated March 2018. The notification was made in the form approved by the Authority. The Worker reported receiving the decision in March 2018.
- The Authority received the application for merit review in April 2017. The application has been accepted.
- The legislative framework governing work capacity decisions and reviews is contained in the:
- 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 the following work capacity decisions of the Insurer:
- A decision as to their current work capacity.
- A decision about what is suitable employment for them.
- The Worker's submissions in support of his application for merit review are summarised as follows:
- The role of a mental health occupational therapist is not suitable employment for them as they do not have the skills, education and work experience for the role.
- The role requires specialist expertise, which they do not have either through training or work experience.
- Their experience in mental health occupational therapy is limited to a 1 0-week work placement which took place as part of their training. This was more than 8 years in the past.
- They have been advised by prospective employers that a role as a mental health occupational therapist is likely to be incompatible with their restrictions as clients need to be restrained from time to time if they become violent.
- The source of the information obtained by the insurer is unreliable. The information relates to employment with a single employer from Victoria and relates to employment in the criminal justice system. The information relates to a niche area of mental health rather than the broader mental health sector in NSW.
- In reply, the Insurer's submissions may be summarised as follows:
- The Worker sustained an injury to their neck in November 2015 when a paper file dropped on to their head. Current diagnosis "Severe arthritis cervical spine, impingement C3 and C4 nerve root, severe headaches, depression/anxiety, severe neck pain".
- The Worker has been certified with partial capacity 24 hours per week from November 2017 until present.
- The treating doctor has approved of the suitable employment options identified by the rehab providers in May 2017.
- The rehab provider provided their Vocational Report dated May 2017 stating that the Worker had been employed with pre-injury employer for a period of six years from 2011 to 2017 full time as an Occupational Therapist.
- The Worker completed Bachelor of Applied Science (Occupational Therapy) UWS in 2010 obtaining the theoretical foundations of occupation therapy, with knowledge of research and report writing, assessing, reviewing and evaluating data, strong communication and relationship building, intermediate computer skills including MS Office and knowledge of occupational therapy practice in mental health sector.
- The rehab provider identified a range of transferable skills for the Worker.
- The rehab provider assessed the functional requirements for the role of mental health occupational therapist and determined that the Worker has the relevant qualifications, industry and vocational experience in this field, further retraining was not deemed necessary to qualify the Worker for this role. The Worker advised the rehab provider that they are willing to undertake the required checks such as National Police Check and the Working with Children Check.
- The mental health provider advised the rehab provider in the labour market assessment that the duties of their particular role were in line with the Worker's qualifications and previous work history, they advised that the functional demands were also aligned to the Worker's current functional capacity and that roles comprising of 32 hours or less are available and that the Worker would continue to be considered for the role.
- The injury management provider made a work capacity decision dated January 2018 reducing the Worker's weekly entitlement to $389.25 per week effective May 2018.
- The Worker lodged an application for Internal review in February 2018 where it was identified and an error in calculation had occurred in the work capacity decision. The Internal reviewer had agreed with the suitable employment options however due to the original error in ability to earn a new decision was made at Internal Review and a new notice period was issued to provide procedural fairness to the Worker.
- The outcome of the internal review being that the Worker's weekly benefits will be reduced as follows:
- The injury management provider accepts the certificates of capacity from the treating doctor certifying the Worker with partial capacity for 24 hours per week.
- The injury management provider accepts that the roles of mental health occupational therapist, workplace rehabilitation consultant and disability services assessor have been identified by rehab provider in accordance with s32A WCA 1987 taking into consideration the Worker's age, education, work history, transferable skills and functional capacity.
- The injury management provider accepts the labour market assessment provided by rehab provider indicating that the Worker would have the ability to earn $36.11per hour or $866.64 per week based on 24hrs of capacity employed with mental health provider.
- The injury management provider accepts the treating doctor (nominated treating doctor) approval of the suitable employment options dated May 2017.
- The injury management provider acknowledges the pay slips provided by the Worker indicating that they have sourced alternative employment of 15 hours per week with post-injury employer $35.22 per hour plus allowances. The injury management provider also acknowledges that the post-injury employer are only offering the Worker 15 hours per week in their current role.
PIAWE x 95% - E +D
$1370.00 x 95% - E + D
$1301.50 - $866.64 + $0.00
=$434.86 effective 14 June 2018
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.
Current work capacity
- The Worker has requested a merit review of the Insurer's decision as to their current work capacity.
- "Current work capacity" and "no current work capacity" are defined in section 32A of the 1987 Act as:
- There is a range of information available to me as to the Worker's current work capacity including information from specialists, allied health professionals and from their nominated treating doctor in the form of WorkCover NSW certificates of capacity (certificates of capacity).
- Certificates of capacity. The most recent certificate of capacity that has been provided to me was issued by the treating doctor. The certificate is for the period March 2018 to April 2018 and indicates that the Worker has capacity for employment for 8 hours per day, 3 days per week in employment where they are able to lift a maximum capacity for lifting and carrying up to 6kg with both hands and they are able to sit, stand, push/pull and bend/twist/squat as tolerated. The certificate also notes that the Worker should take "rest breaks as required".
- This certification has been in place since November 2017. Prior to this time, the Worker had the same functional abilities but was certified as having capacity for employment for 8 hours per day, 4 days per week.
- Allied health report. There is a physiotherapist's report prepared by the physiotherapist of physiotherapy provider. The report is dated May 2017. At the time of the report, the physiotherapist had assessed that the Worker had the following physical capacity:
- In reply, the Insurer's submissions may be summarised as follows:
- Lifting up to 2kg
- Writing for 5 minutes
- Reading for 30 minutes
- Vacuuming for 5 minutes
- Driving for 45 minutes
- Walking for 15 minutes
- Pain specialist. The pain specialist is the Worker's treating pain specialist. In May 2017, the pain specialist sent a letter to the Worker's nominated treating doctor. In the letter pain specialist indicated that there had been an initial consultation for pain management with the Worker and that they were willing to commence a process of reduction of her pain medication. The pain specialist also noted that the Worker was open to the idea of a gradual return to work as their pain improved.
- A rehabilitation medicine consultant physician met with the Worker in July 2017. The rehabilitation medicine consultant physician noted that the Worker was progressing well but did not comment on her capacity for employment at the time.
- The Worker had a follow up appointment with the rehabilitation medicine consultant physician in August 2017. The rehabilitation medicine consultant physician noted that the Worker's pain had become worse since weaning off some of their pain medication. They also noted that the Worker was actively looking for work despite this set back and that they may benefit from certain interventions suggested by the rehabilitation medicine consultant physician.
- Finding as to capacity for employment. The most recent information available as to the Worker's capacity for employment is the information contained in the certificates of capacity. This information certifies a greater physical capacity than the capacity observed by the physiotherapist in May 2017 and I consider that it is consistent with the general observations made by the pain specialists.
- I therefore find that the Worker has capacity for some kind of employment in accordance with the hours of work and physical capacity set out on the most recent certificate of capacity for the period March 2018 to April 2018.
current work capacity, in relation to a worker, means a present inability arising from an injury such thatthe worker is not able to return to his or her pre-injury employment but is able to return to work insuitable 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
- The Worker has requested a merit review of the Insurer's decision in relation to suitable employment.
- "Suitable employment" is defined in section 32A of the 1987 Act as:
- Overview of education, skills and work experience. A rehabilitation counsellor with an occupational rehabilitation service provider prepared a report on the Worker's transferrable skills, education and their work history as well as suitable employment options for the Worker. The report is dated November 2017. This report follows a previous report prepared by the rehabilitation counsellor in May 2017. The more recent report has updated labour market information that is based on the Worker's altered certification. The roles and employers included in the November report are identical to those referred to in the May report and I will therefore refer to the information contained in the November report for the remainder of these reasons.
- The Worker is an occupational therapist. They hold a Bachelor of Applied Science (Occupational Therapy) which they completed in 2010 and they worked in this occupation with pre-injury employer between 2011 and 2015.
- The Worker is presently employed as an occupational therapist with post-injury employer, working 15 hours per week.
- Prior to becoming an occupational therapist, the Worker worked part time as a customer service officer in a bank for 4 years and prior to that they worked in a clerical position with a local council.
- Suitable employment options. The rehabilitation counsellor proposed three suitable employment options for the Worker being; Occupational therapist (mental health), workplace rehabilitation consultant and disability services assessor.
- My review of suitable employment for the Worker is limited to her current role and a role as an Occupational Therapist (mental health) as these occupations pay higher rates than the others identified by the rehabilitation counsellor, and in light of my findings regarding these occupations.
- Occupational therapist (mental health). This occupational category is a sub-category of employment within occupational therapy. The Worker disputes that they are able to work in this particular niche within their profession. They have indicated that they understand from prospective employers that they require people with specialist training or experience in mental health. The Worker has also indicated that some employers have told them that clients with mental health issues may also become violent and need to be restrained from time to time. The Worker submits that their injury prevents them from restraining and violent client.
- The information provided by rehabilitation counsellor is that two out of three employers did not require specialist experience or training and that the work required for the role would be within the Worker's functional requirements.
- The Worker is currently working as an occupational therapist. They have the relevant training and work experience and the work is suitable when having regard to their physical capabilities. On comparison, the Worker's current rate of earnings are comparable to those indicated for an occupational therapist (mental health).
- The information contained in the labour market assessment report indicates that work as an occupational therapist exists on a part time basis. There is also work in this area in which there is no requirement to lift weights greater than 6kg and where the Worker could self-pace other relevant activities such as bending and twisting.
- I also note that the Worker has been working as an occupational therapist for approximately 5 months. I understand from their submissions that they are managing this employment. I do note that they are working less than 24 hours per week, however, I am satisfied on balance that the Worker would be capable of undertaking 24 hours of employment per week, if such employment were to become available to them as an occupational therapist.
- For the reasons outlined above, I am satisfied that work as an occupational therapist is suitable employment for the Worker. I therefore find that the Worker has current work capacity in accordance with the definition under section 32A of the 1987 Act.
Suitable employment, in relation to a worker, means employment in work for which the worker iscurrently suited:
(a) having regard to:
(i) the nature of the worker's incapacity and the details provided in medical informationincluding, but not limited to, any certificate of capacity supplied by the worker (undersection 448}, 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 WorkCover Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the emplo yment is of a type or nature that is generally available in the emplo yment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.
Merit Review Service
Delegate of the State Insurance Regulatory Authority