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Merit review WC074/18

An example of a decision where a worker had some capacity for work for only a specified period of time within the reviewable period. Ability to return to work in suitable employment was assessed for that period.

Findings on review

1. 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.

2. The roles of customer service office/enquiry clerk, receptionist in an aged care facility and clerical and office support worker did not constitute suitable employment for the Worker during the period July 2017 – July 2018.

3. The Worker did not have current work capacity for whole of the period under review.

Recommendation based on findings

4. 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.

5. The Insurer is to determine the Worker’s entitlement to weekly payments of compensation in accordance with the above findings, from July 2017 (the date of the work capacity decision), subject to any notice period.

Background

6. In October 2015, the Worker injured their lower back whilst working as a disability support worker with pre-injury employer. The Insurer also subsequently accepted liability for consequential chronic pain and anxiety/panic attacks.

7. In July 2017, the Insurer made a series of work capacity decisions. It determined that the Worker had current work capacity, that the roles of customer service officer/enquiry clerk and clerical and office support worker constitute suitable employment for them and that they had the ability to earn $425 per week in suitable employment. It calculated their entitlement to weekly payments of compensation under section 37(3) of the 1987 Act at $188.60.

8. In June 2018, the Insurer undertook an internal review, it again calculated the Worker’s entitlement to weekly payments of compensation at $188.60. the Worker advises they received this decision in July 2018 (4 working days after the date of the decision). The Insurer submits that information from Australia Post indicates that the Worker received the decision in June 2018.

9. The Worker made an application for merit review which was received by the Authority in July 2018. Even taking the earlier date of June 2018, the Worker’s application was received by the Authority within 30 days after they received notice of the Insurer’s decision on internal review. I am satisfied that the application was made within time pursuant to section 44BB(3)(a) of the 1987 Act. The application has been made in the form approved by the Authority.

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.

Work capacity decisions referred for review

13. The Authority has confirmed with the parties that the following work capacity decisions of the Insurer have been referred for review under section 44BB of the 1987 Act:

  • their current work capacity,
  • what constitutes suitable employment for their,
  • the amount they are able to earn in suitable employment.

14. As this merit review is a review of the Insurer’s original work capacity decisions in respect of the above matters, the period under review is from July 2017 (the date of the Insurer’s original work capacity decision) to date and any findings and recommendations will be made in respect of that reviewable period.

Submissions

15. In the application for merit review, the Worker makes the following submissions:

  • They are not able to work for 5 hours per day, 3 days per week as a customer service office/ enquiry clerk or clerical and office support worker. They couldn’t commit to attending these roles as they have regular medical appointments.
  • These roles would require them to sit at a desk. They are not able to sit for very long. They have no experience undertaking these roles and they also require a level of computer skills which they do not have.
  • They have no training or certifications in clerical roles as suggested by the Insurer. They did attempt a computer skills course but found that sitting aggravated their symptoms and was not able to complete it.
  • They have been out of the workforce for some time and there is no realistic prospect of them obtaining employment in these “unfamiliar roles”.
  • They are not able to lift, lift or push as a result of their medical conditions.
  • The Insurer says they can sit for 30 mins and drive for 40 mins at a time, if they can only sit for 30 mins at a time they cannot drive for 40 minutes as this would require them to be seated.
  • Even if they were able to return to work they would not be able to earn $28.33 per hour. In their previous role they were earning $23.32. Their enquiries indicate that the current minimum wage is $18.93 per hour. Given their lack of experience and skills in the suggested roles, they could only expect to earn that rate.

16. In its reply, the Insurer makes the following submissions:

  • the Worker has the necessary functional and vocational capability to work as customer service office/enquiry clerk and clerical and office support worker. These roles are suitable employment within the meaning of section 32A of the 1987 Act.
  • It relies on the internal review decision.

Documents considered

17. 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.

18. 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.

REASONS

Capacity for Work

19. The Worker sustained a lower back injury when they twisted their lower back while trying to stabilise a patient at work. They were subsequently diagnosed with consequential chronic pain and anxiety/panic attacks.

20. A letter from the pain management specialist dated March 2018 sets out the history of the Worker’s injuries. Initially they were diagnosed with lower back muscle spasm but later an annular disc tear at L5/S1. They also “more than likely” sustained a strain and partial tear to the gluteus minimus muscle. They had pain which radiated to the gluteal region, towards the hip and right lower limb and irritation of the sciatic nerve.

21. The pain management specialist reports that the Worker “has been troubled with some degree of background mild anxiety and clinical reactive depression issues”. They state that their situation is complex, it has developed over a long period of time and if not managed properly, against a background of existing chronic pain and “emotional arousal factors”, would only get worse.

22. The pain management specialist recommends the following treatment plan: recommence counselling with their treating psychologist; physiotherapy and gentle exercise including hydrotherapy; attendance at a pain education program; lumbar epidural steroid therapy and possibly injections to the right sacroiliac joint. If not helpful, the pain management specialist recommends “scrambler therapy” and corrective surgery and repair of the torn muscle if that is also ineffective.

23. Much of the medical information before me pre-dates the pain management specialist report and is in fact quite dated (some going back as far as late 2015/early 2016). I will not provide specific commentary on all of these individual reports, but I do note that they fairly consistently support that the Worker had some capacity to work with restrictions. In particular, I note that treating doctor, certified the Worker with capacity for some type of employment in WorkCover NSW Certificates of Capacity (Certificates of Capacity) issued from as far back as January 2016.

24. In Certificates of Capacity dating from July 2017 to June 2018, the treating doctor has certified the Worker with capacity to work for 5 hours per day, 3 days per week not working with intellectually disabled people and with the following physical capabilities:

  • Lifting/carrying no more than 7 kg;
  • Sitting no more than half an hour at a time
  • Standing no more than 10 mins at a time
  • Pushing and pulling no more than 10 kg
  • No repetitive bending or twisting of the back
  • Driving 40 mins at a time.

25. This certification was generally consistent with the remainder of the medical reports before which were issued at a similar time. However, in the most recent WorkCover NSW certificate of capacity before me, dated July 2018, the treating doctor certifies the Worker with no current capacity for any employment. The following comment is noted:

“persistent lower back pain. Difficulty coping with chronic pain is causing anxiety and depression. This is my view that they are unfit for any employment at this stage”.

26. There is a lack of recent medical information before me. The most recent medical information (aside from the above) is the above-mentioned report from the pain management specialist. The pain management specialist does indicate in this report that the Worker may be able to return to work in a role other than their pre- injury role (which required “heavy physically restraining activities”) and that does not require sitting for any long period of time.

27. However, in that report, the pain management specialist does indicate that the Worker continues to suffer from various ongoing pathology and symptoms, in particular, that they are “troubled with ongoing severe chronic pain”.

28. The pain management specialist also cautions that any further stress or strain against the background of the Worker’s chronic pain and anxiety and depression symptoms could result in a worsening of their condition. I consider that the certificate of capacity issued by the treating doctor in July 2018 indicates that such a worsening of their condition has occurred.

29. In a Vocational Rehabilitation Progress Report dated March 2018 it is noted that that the Worker continues to experience high levels of lumbar back pain after cortisone injections and has had minimal improvement with their gym program. It is noted in a Closure Report dated May 2018 that the Worker advised they would be commencing “the Craig’s Table Program” after receiving steroid therapy injects at L5/S1.

30. I consider that the medical information before me consistently indicates that the Worker had some capacity for work up until the recent exacerbation of their condition. The most recent information before me indicates that the Worker’s condition has worsened such that a spate of further treatment has been recommended.

31. In the certificate of capacity dated July 2018, the treating doctor certifies the Worker with no current capacity for any employment. There is no other medical information before me which post-dates the recent worsening of the Worker’s condition and in which a contrary opinion as to the Worker’s capacity for work is expressed. Further, the treating doctor is the Worker’s long term nominated treating doctor and has been reviewing their capacity for work on a regular basis over a long period of time. I therefore give the treating doctor’s opinion particular weight.

32. I find that the Worker had capacity to work 5 hours per day, 3 days per week with restrictions as recommended by the treating doctor (set out above) from July 2017 (the date of the work capacity decision) to  July 2018 and that they has had no capacity to undertake any form of employment from  July 2018.

Current Work Capacity

33. Section 32A of the 1987 Act defines “current work capacity” and “no current work capacity” as:

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 their 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.

34. As I have found that the Worker had no capacity to undertake any form of employment from July 2018, I am satisfied that they have had an inability arising from an injury such that they have not been able to return to work, either in their pre-injury employment or suitable employment from that time. I find that the Worker has had no current work capacity since July 2018.

35. As I have found that the Worker did have some capacity to work during the period July 2017 –July 2018, I will turn to consider whether they were able to return to “suitable employment” for that period.

36. Based on the information before me, there appears to be no dispute that the Worker has a present inability arising from their injury such that they are not able to return to work in their pre-injury employment.

Suitable Employment

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

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.

38. A rehabilitation counsellor undertook a vocational assessment of the Worker on behalf of Injury Treatment. The following account of the Worker’s vocational and educational history is taken from the rehabilitation counsellor’s report dated May 2017 unless otherwise stated.

39. The Worker is 49 years old. They attended school in Country A to a year 11 level. They completed a Diploma of Beauty Therapy, a Diploma of Body Massage and a Lymphatic Drainage and Structure and Function of the Human Body course in 1987. In 2006, they completed a Certificate II in Community Services. They started but did not complete a Diploma of Children’s Services.

40. It is noted in a vocational rehabilitation progress report that the Worker completed a computer course in November 2017 with a training provider. However, the Worker submits that they did not complete the course.

41. The Worker was employed in their pre-injury role, as a disability support worker, from April 2014. Prior to that, they worked as a childcare worker for two different companies from 2005-2011. From 2002-2005 they worked as an office manager. Prior to that they ran a home-based beauty therapy business.

42. The rehabilitation counsellor identified the following as suitable employment options for the Worker: customer service office/enquiry clerk, receptionist in an aged care facility and clerical and office support worker.

Customer Service Officer / Enquiry Clerk

43. Whilst I acknowledge that the treating doctor has indicated that all of the vocational options identified by the rehabilitation counsellor are suitable vocational options for the Worker, this is just one of the many factors for me to consider when assessing whether the roles are suitable employment for the Worker within the meaning of section 32A of the 1987 Act.

44. The Worker has a capacity to sit for 30 minutes at a time. The job description provided by the rehabilitation counsellor tends to indicate that this role is of a sedentary nature. Whilst the rehabilitation counsellor reported that all three employers contacted in respect of this vocation confirmed that the role would be suitable for a candidate with an ability to sit for 30 minutes at a time, they also report that all three employers indicated “the vacancy required long periods of sitting”. No further information is provided as to how the Worker would be able to adhere to the recommendation that they sit for only 30 minutes at a time whilst carrying out the duties required of the role. In the absence of such information, I am not satisfied that this role is work for which they are suited when taking into account the nature of their incapacity, specifically their restricted ability to sit for long periods of time without a break.

45. The Worker submits they does not possess the level of computer skills required of this role. the rehabilitation counsellor reports that all three employers confirmed that the Worker’s “intermediate computer literacy” is sufficient for the role. However, it is not clear to me, based on the limited information before me, that the Worker has computer skills which are at an intermediate level.

46. It does not appear that the Worker’s computer skills were tested as part of the vocational assessment process, rather the rehabilitation counsellor appears to rely on the Worker’s self-reported competencies in this regard. I give little weight to such self-reported competency levels. If certain competency levels are to be put to potential employers to gauge whether the employer considers a worker’s skills sufficient for a particular role, I would suggest that such competencies should first be tested.

47. Further, whist the Worker reported having an “intermediate” ability to type, browse the internet, email, enter data and type documents in Microsoft Word, they reported have “nil” ability to create or use spreadsheets and a “basic” ability to use power point, payroll / MTYOB and SAP.

48. There is a Training Application Form dated August 2017 before me which indicates that the Insurer approved the Worker participating in a computer retraining course “to obtain computer skills in order to return to work in identified vocational options…” the Worker submits that they never completed any computer skills course. Even if I accepted that they had, the form indicates the course was “Basic Microsoft skills” and I would still therefore remain unconvinced that they possessed “intermediate computer literacy” as the rehabilitation counsellor reported to the employer contacts.

49. Employer contacts also indicated that suitable candidates for this role would have sales experience. the Worker’s most recent roles have been as a disability support work and a child care worker, these roles do not appear to have involved sales duties. Whilst I acknowledge that they may have gained some sales experience when they ran their own business, this was back in 2002, some 16 years ago. I therefore do not consider that this could be considered recent experience.

50. The Worker did work as an office manager for a period of 3 years. However, this was 13 years ago. As noted above, their recent work experience has all been in carer type roles, as a disability support worker and childcare worker. They do not have recent work experience in a customer service office role or a role that I would consider to be of a similar nature.

51. I am also not satisfied based on the information before me that this role is work for which the Worker is suited when considering their education, skills are work experience.

52. In considering the above and the balance of the matters referred to in section 32A of the 1987 Act, I am not satisfied that this role constitutes suitable employment for the Worker.

Clerical and Office Support Worker

53. The rehabilitation counsellor indicates in their report that all three employer contacts indicated “the vacancy requires long periods sitting”. For the reasons which are provided above, I am not satisfied that such a role is suitable for the Worker taking into their account their inability to sit for more than 30 minutes at a time without a break.

54. The rehabilitation counsellor again reports that employer contacts confirmed that “intermediate computer skills” are sufficient for the role. For the reasons provided above, I am not satisfied based on the limited information before me that the Worker’s computer skills are at an intermediate level and therefore of the level required for the role.

55. The Worker did work as an office manager for a period of 3 years. However, this was 13 years ago. As noted above, their recent work experience has been in carer type roles. Whilst these roles have involved some administrative / clerical duties, these appear to have been minimal and only ancillary to their primary carer’s duties. They do not have recent work experience in clerical role or a role that I would consider to be of a similar nature.

56. I am also not satisfied based on the information before me that this role is work for which the Worker is suited when considering their education, skills are work experience.

57. In considering the above and the balance of the matters referred to in section 32A of the 1987 Act, I am not satisfied that this role constitutes suitable employment for the Worker.

Receptionist in an Aged Care Facility

58. The Insurer found that this role was “outside [the Worker’s] functional abilities and therefore could not be considered suitable employment”. I agree with that conclusion. In particular, I note that this role is also reported to require “long periods of sitting”.

59. Information from employer contacts also indicates that “a high level of computer literacy” may be required for the role. For reasons outlined above, I am not satisfied based on the limited information before me that the Worker’s computer skills are of this level. They also do not have any recent experience undertaking a receptionist role or a role of a similar nature.

60. I am therefore also not satisfied that this role is work for which the Worker is suited when considering the nature of their incapacity or their education, skills and work experience.

61. In considering the above and the balance of the matters referred to in section 32A of the 1987 Act, I am not satisfied that this role constitutes suitable employment for the Worker.

Findings on suitable employment and current work capacity

62. While the medical information before me supports that the Worker had some capacity for work from July 2017 –  July 2018, I am not satisfied that it adequately supports that they were able to return to work in “suitable employment” as defined by section 32A of the 1987 Act in that period.

63. I find that the Worker had a present inability arising from an injury such that they were not able to return to work, either in their pre-injury employment or in suitable employment from July 2017 –  July 2018. I therefore also find that they have “no current work capacity” as defined by section 32A of the 1987 Act for this period.

Merit Review Service
Delegate of the State Insurance Regulatory Authority