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Merit review WC069/18

Finding on review

1. The following is the finding of the Authority on review and is to be the basis of a review decision by the Insurer.

2. The employment options of cashier and crossing supervisor are not suitable employment for the Worker in accordance with the definition under section 32A of the Workers Compensation Act 1987 (the 1987 Act).

Recommendation based on finding

3. The Insurer is to calculate the Worker’s entitlement to weekly payments of compensation for the period from July 2013 to July 2015 and make any back payments required accordingly.

4. The above recommendation is binding on the Insurer in accordance with section 44BB(3(g) of the 1987 Act.

Background

5. The Worker injured their lower back in the course of their duties as a process worker with their pre- injury employer. The accepted date of injury is June 2009.

6. In July 2013, the Insurer made a series of work capacity decisions in relation to the Worker. It determined that they had current work capacity and that their entitlement to weekly payments of compensation was $339.36.

7. In July2015 the Insurer issued a notice under section 74 of the Workplace Injury Management Act 1998 (the 1998 Act) declining liability for the Worker’s injury.

8. The Worker’s legal representative lodged an application for internal review of the work capacity decision from July 2013 with the insurer on March 2018. The Insurer failed to conduct the review within 30 days and the Worker has lodged an application for merit review in accordance with section 44BB(3)(b) of the 1987 Act.

9. The Authority received the application for merit review in May 2018. The application has been accepted.

Legislation

10. The legislative framework governing work capacity decisions and reviews is contained in the:

  • Workers Compensation Act 1987 (the 1987 Act);
  • Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);
  • Workers Compensation Regulation 2016 (the Regulation);

11. Section 43 of the 1987 Act describes a “work capacity decision”.

12. Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.

Information considered

13. 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

14.The Worker’s submissions in support of their application for merit review are summarised as follows:

  • The work capacity decision should be revoked because suitable employment has not been identified.
  • Work as a cashier is not suitable because the demands of the role require repetitive use of the arms and hands and they had to discontinue part time work as a shop assistant because of the increase in symptoms in their right arm.
  • They have poor standing and walking tolerance and work as a cashier requires long periods of standing.
  • Work as a school crossing supervisor is not suitable because they have pain and stiffness in their left leg and limping as identified in the report of the medical doctor dated January 2018. Work as a school crossing supervisor requires prolonged standing and walking.

15.In reply, the Insurer’s submissions may be summarised as follows:

  • In June 2009, the Worker sustained a lower back injury in the course of their employment with the pre-injury employer.
  • In July 2016, it declined ongoing liability for the injury as it had resolved and treatment was no longer reasonably necessary.
  • In July 2013 a work capacity decision was issued pursuant to sections 43(1)(a),(b),(c) and D of the 1987 Act. It was determined that:
    • The Worker had the current work capacity for 20 hours per week with a sitting tolerance of up to 30 minutes, standing tolerance of up to 30 minutes and that they should avoid bending/twisting and squatting.
    • The roles of Cashier and School Crossing Supervisor were identified as suitable employment options for the Worker.
    • The Worker has the ability to earn $411.28 per week in suitable employment.
    • The Worker’s PIAWE was $938.30 per week (the transitional rate).
    • The Worker’s entitlement to weekly payments of compensation were to be reduced to $339.36 per week from November 2013.
  • In March 2018 [sic] the Worker submitted an application for internal review.
  • In June 2018, the internal dispute resolution team at the Insurer were notified that an application for merit review had been submitted.
  • Due to an administrative oversight, the application for internal review was not escalated to the internal review team and the internal review was not conducted.
  • The conclusions in the medical doctor’s report relating to incapacity for employment relate to the date of injury in March 2010 and these injuries were not the subject of the work capacity decisions of July 2013. The work capacity decisions of that date related to the injuries from June 2009.
  • As an internal review has not been completed, it will be guided by the outcome of the review by the Authority.

Reasons

Nature of merit review

16. 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.

17. I will then make findings and may make recommendations about the work capacity decision that have been referred for review.

18. The review is not a review of the Insurer’s procedures in making the work capacity decision and/or internal review decision.

19. A merit review must not interfere with an insurer’s decision in relation to matters of liability in a claim for workers compensation. Accordingly, this review of the Insurer’s work capacity decision is limited to the period from the date of that decision being July 2013 and the date on which the Insurer declined liability for the claim, being July 2015.

Suitable employment

20. The Worker has indicated that they would like a merit review of the Insurer’s decision in relation to suitable employment. In conducting the review, I am to refer to the definition of suitable employment set out in the 1987 Act.

21.“Suitable employment” is defined in section 32A of the 1987 Act as:

  • 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 WorkCover 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.

22. Nature of incapacity. The Worker does not dispute the Insurer’s finding that the nature of their incapacity was such that they were able to work 4 hours per day, 5 days per week and that is able to sit and stand for periods of 30 minutes and should avoid bending, twisting and squatting.

23. Overview of education, skills and work experience. The Worker completed their education to the equivalent of year 12 in Country A. They undertook process work in Country A before immigrating to Australia in 1993. It appears from a report prepared by the rehabilitation consultant for an occupational rehabilitation services provider dated April 2013 that the Worker did not work in paid employment between 1993 and 2007 at which time they commenced employment with their pre-injury employer. The Worker’s role with their pre-injury employer also involved process work.

24. The rehabilitation consultant indicated that the Worker had very limited English language skills and that their pre- injury employer had communicated its requirements to their through non-verbal cues. the Worker does not have a driver’s license and has not undertaken any further education since leaving high school.

25. The rehabilitation consultant’s report contains a list of transferable skills that include customer service and administrative skills. There is no connection between these skills and any of the employment that the Worker has undertaken according to the rehabilitation consultant ‘s report. The list contains skills that are so removed from activities documented for the Worker’s work roles, that I have given them very little weight.

26. The Insurer has proposed two roles as being suitable employment for the Worker, these roles are cashier and crossing supervisor.

27. Cashier. The role of a cashier is said to involve scanning of items, manual calculation of change, assisting with stocktakes, cleaning the store, merchandising and maintaining stock availability, the case of a cashier with Store A. There was no specific information as to the requirements for roles at Company A or a fruit and vegetable store.

28. At the time of the work capacity decision, the Worker had no work experience as a cashier and had received no training. Two employers contacted by the rehabilitation consultant for the purpose of preparing the report indicated that they would provide on the job training, however, there is no indication that the training could be provided in language which is the only language in which the Worker is proficient.

29. There is also no information about the functional requirements of the roles. There is no information as to whether the Worker would be able to alternate between sitting and standing every 30 minutes as required in accordance with their certificates of capacity or whether ending, twisting or squatting are requirements of the role.

30. I have noted that for the role with Store A, the Worker would have been required to undertake merchandising, cleaning and stocktakes and I consider that these activities would very likely involve bending, twisting or squatting.

31. Finally, I note that there is no indication as to whether roles as a shop assistant exist for four hours per day, 5 days per week which is the Worker’s actual capacity for employment.

32. For the reasons outlined above, I am not satisfied that the role of a cashier is suitable employment for the Worker in accordance with the requirements under section 32A of the 1987 Act.

33. Crossing supervisor. The role of crossing supervisor was also found to be suitable employment for the Worker. Of three employers contacted, one employer required candidates with a driver’s license and I note that the Worker does not have such a license.

34. The remaining roles required successful applicants to undergo training with Roads and Maritime Services. No reference was made to whether the Worker would be able to undertake the training with their limited English language proficiency.

35. There is also no information as to whether the Worker would be able to alternate between sitting and standing every 30 minutes as required in accordance with their certificates of capacity.

36. Finding. The employment options identified by the Insurer for the Worker are not suitable employment in accordance with the requirements under section 32A of the 1987 Act.

Merit Review Service
Delegate of the State Insurance Regulatory Authority