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Findings and recommendations on merit review 003/17

Date of Review: 23 May 2016

Our Reference: 003/17

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 worker has no current work capacity, and is likely to continue indefinitely to have no current work capacity.
  3. The worker satisfies the special requirement for continuation of weekly payments of compensation after the second entitlement period, pursuant to section 38(2) of the Workers Compensation Act 1987 (the 1987 Act).

Recommendations Based on Findings

  1. The following recommendation is binding on the Insurer and must be given effect to by the Insurer under section 44BB(3)(g) of the 1987 Act.
  2. The Insurer is to determine The worker’s entitlement to weekly payments of compensation under section 38(6) of the 1987 Act.

Background

  1. The worker suffered an injury to his left wrist and hand while undertaking his duties at work. He made a claim for compensation that has been accepted by the Insurer. The date of injury referred to in the material before me is 8 January 1998.
  2. The worker has received weekly payments of compensation for an incapacity for work resulting from the injury.
  3. On 13 February 2017, the Insurer made several work capacity decisions including that the worker has current work capacity but does not meet the special requirements for continuation of weekly payments after the second entitlement period.
  4. The worker referred those decisions for internal review by the Insurer. On 30 March 2017, the Insurer affirmed its decision to cease the worker’s entitlement to weekly payments of compensation.
  5. The Authority received the application for merit review on 26 April 2017. I am satisfied that the application has been made within 30 days as required under section 44BB(3)(a) of the 1987 Act. The application is also made in the form approved by the Authority.

Legislation

  1. 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).
  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 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 parties.

Submissions

  1. In the application for merit review, the worker provided the following submissions, in summary:
    • He does not agree he is capable of performing the roles the Insurer has identified.
    • He has no capacity to find real employment and this is evidenced by his many attempts to find suitable employment since ceasing work with his pre-injury employer and by the fact his pre-injury employer, as a large employer with many diverse roles, could not accommodate him in a suitable duties role.
    • He should be found to have no current work capacity and the Insurer should continue to pay his weekly payments.
    • He originally injured his left arm when repetitively using controls for the mower. He underwent a scapho-lunate ligament reconstruction in 1999. He is left handed.
    • Following this injury he started to rely more heavily on his right arm and he developed a consequential condition in his right arm.
    • He has constant pain in his left wrist, right shoulder, elbow and numbness in his right wrist.
    • He also has a separate work related injury to his left foot.
    • He finds it very difficult to do any physical tasks with his arm. He is not the kind of person who will sit around and do nothing but no matter how much he pushes himself, he just cannot do the things he used to.
    • He has significantly reduced strength in his dominant left arm and he has a lot of muscle wasting.
    • The maximum amount of time that he can do anything with his arms is 1 hour. After that he suffers increased pain that will take him a couple of days to get over.
    • He has only ever worked with his hands and he does not know how to do anything else.
    • He suffers from dyslexia and he has a great deal of difficulty learning new things. He cannot do anything with numbers and he cannot use a tape measure.
    • He was diagnosed with dyslexia in high school.
    • that means that he cannot do maths. He has trouble reading and writing. He has problems working out time lines and has difficulty learning computer skills.
    • He is skilled with his hands but now he cannot use them properly. It is very frustrating.
    • He has tried to hide the dyslexia throughout his working life. It was not a problem when he was just operating equipment but there were some times when he was on light duties that he had to get his work mates to cover for him and do paperwork.
    • He had to do a literacy test with his pre-injury employer about 12 years ago. He was called back because he failed.
    • His employer sent him to do an electrical tagging and testing course. He failed the exam and the teacher called him back and he was able to demonstrate his knowledge so they passed him.
    • Since he has stopped working he has tried a number of jobs which have not lasted for more than 6 weeks due to a combination of his physical incapacity and his inability to work with numbers and do paperwork.
    • He even does occasional handyman jobs for himself but his friend has had to do the invoicing for him.
    • The work as a storeman and the customer service roles are out of the question for him as they will both require paperwork and the ability to work with numbers. Even if a customer was asking him about sizes, prices, etc he would get confused and would not be able to answer them
    • The work as a traffic controller would involve loading and unloading trucks, carrying heavy stacks of witches hats, carrying signs, climbing up on trucks, etc, all of which he would not be able to do with his arms.
  2. The Insurer has provided submissions in reply, which are in summary:
    • The worker has not provided any medical evidence to support his assertion that he is not capable of performing any of the 3 identified suitable employment roles: traffic controller; store person; and customer service/sales (warehouse/tools).
    • “As detailed in the work capacity decision, in considering the suitability of employment, I draw your attention to the work capacity assessors’ careful research, undertaken to ensure the roles identified are within the functional limitations revealed at assessment. I also note that they took into account [the worker’s] age and experience. In this regard, I submit that they are in compliance with Section 32A of the 1987 Act, in regard to suitable employment.”
    • The injury and subsequent surgery to the left wrist is well recorded and this is not in dispute.
    • The worker’s alleged incapacity is not supported by the contemporaneous medical evidence or certification from any of the treatment providers.
    • The worker states that he has constant pain in his left wrist, right shoulder, elbow and numbness right wrist. This claim is not supported by the contemporaneous rehabilitation reports and assessments, nor is it supported by the multidisciplinary work capacity assessment report of 4 August 2007.
    • The worker’s injury to the left foot was in 2007 and the certification indicated that he has recovered and is fit for his pre-injury duties from 28 May 2009. This is of no relevance in the assessment of the current capacity for work as a result of the wrist injury in 1998.
    • The contemporaneous rehabilitation and reports (from 2007) and the multidisciplinary work capacity assessment report of 4 August 2016 do not support The worker’s claims that:
      • He should be found to have no current work capacity. This is also not supported by the consistent opinion and certification of the NTD over many years, including the most recent certificate of 8 December 2016.
      • He finds it difficult to do any physical tasks with his arm.
      • He cannot open jars.
      • If he gets under a car and uses a shifter or spanner his arm gets sore really quickly and he has to stop.
      • He has increased pain and disability, leading to his inability to perform certain tasks and lack of strength and limiting the use of his arms to 1 hour, after which he claims he requires up to 2 days to recover.
    • The worker’s functional limitations were carefully assessed by a General Surgeon and Injury Management Consultant and by an Occupational Therapist. Their reports reveal careful history taking and careful functional assessment. Their conclusions are balanced and evidenced-based. Their reports are to be preferred to the worker’s unsupported and unsubstantiated assertions, including: o His claim to have significantly reduced strength in his dominant left arm and he has a lot of muscle wasting.
      • His allegation that the role of traffic controller would involve loading and unloading trucks, carrying heavy stacks of witches’ hats, carrying signs, climbing up onto trucks, all of which would aggravate his arms.
    • In arriving at the assessment of suitable employment, the vocational assessor took into account the worker’s educational, employment and psychosocial history. The assessor took the history and the worker’s transferrable skills into account when assessing suitable employment.
    • The worker has not supplied any contemporaneous evidence of his alleged dyslexia and learning difficulty, which he claims so severely limits his activities of daily living. He did not disclose those alleged literacy and numeracy difficulties to the work capacity assessors.
    • The worker has not indicated when he attended the electrical and tagging course. The pre-injury employer’s training records show he has attended many courses, including a safe checking of electoral appliances course in 2005. The outcome was “Attended”. This means that no test was required; it was a general information program. In 2006, the worker attended and completed successfully the Traffic Control using stop/slow baton blue ticket. The worker successfully completed a written test. He did not disclose his alleged literacy and numeracy difficulties to the work capacity assessors. Given the training record and the evidenced-based reports of the Injury Management Consultant and Occupational Therapist, the Insurer is convinced these are to be preferred to the worker’s unsupported and unsubstantiated assertions.
    • The evidence-based reports of the Injury Management Consultant and the Occupational Therapist are to be preferred to the worker’s unsupported and unsubstantiated assertions, including:
      • That if he does occasional handyman jobs for himself he gets a friend to do the invoicing for him.
      • Since he has stopped working he had tried a number of jobs that had not lasted for more than 6 weeks due to a combination of physical and literacy deficiencies.
      • The customer service and storeman roles require literacy and numeracy levels, which he cannot manage.

Reasons

Nature of merit review

  1. This matter involves a merit review of the work capacity decision of an insurer in accordance with section 44BB(1)(b) of the 1987 Act.
  2. The review is not a review of an insurer’s procedures in making the work capacity decision and/or internal review decision. The review requires 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.

Current work capacity

  1. The worker was employed by his pre-injury employer between 1984 and 1997. He worked in maintenance, construction, traffic controlling, plant operation, pressure cleaning, electrical testing, auditing and machine operation.
  2. In January 1996, the worker was working as a horticulturist (landscaper) when he felt left wrist pain. He attributed the pain to the constant manipulating of buttons at work. He required surgery in 1997. He then experienced lateral right elbow pain in approximately 1998.
  3. 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:
    • 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
  4. To make a finding on the worker’s current work capacity under section 32A of the 1987 Act, I am required to consider whether he can return to work in his pre-injury employment or suitable employment.

Suitable employment

  1. “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:
      • having regard to:
        • 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
        • the worker’s age, education, skills and work experience, and
        • 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
        • any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
        • such other matters as the WorkCover Guidelines may specify, and
      • regardless of:
        • whether the work or the employment is available, and
        • whether the work or the employment is of a type or nature that is generally available in the employment market, and
        • the nature of the worker’s pre-injury employment, and
        • the worker’s place of residence.
  2. A rehabilitation consultant conducted a vocational assessment of the worker 12 July 2016. Her findings and recommendations are set out in a vocational assessment report dated 4 August 2016.
  3. The following roles are proposed as being suitable employment for the worker: traffic controller; store person; and customer service/sales (warehouse/tools).
Traffic Controller, Store Person, or Customer Service/Sales (Warehouse/Tools)
  1. The rehabilitation consultant provides the typical duties required of each role in the vocational assessment report. In assessing whether they constitute “suitable employment” for the worker, I am required to have regard to the details provided in the medical information and the nature of the worker’s incapacity.
  2. The medical information before me that addresses the nature of the worker’s incapacity is given by three medical practitioners.
  3. The first practitioner is a consultant surgeon who examined the worker on 20 July 2016. He prepared a report on 4 August 2016 setting out his examination findings, the history of the worker’s employment, injury and treatment to that time.
  4. This practitioner advises that his physical examination of the worker “yielded fairly good results” and “certainly was not suggestive of any undue degree of dysfunction thereat.”
  5. The doctor also details that he contacted the worker’s nominated treating doctor (NTD) on 21 July 2016. Both doctors agreed that the worker had capacity to work full hours / days per week.
  6. The NTD has maintained this assessment through to the most recent certificate of capacity that is before me, dated 8 December 2016. It certifies the worker “Fit for Full time hours at suitable duties or at reduced hours for more physically demanding tasks.”
  7. An occupational therapist conducted a functional assessment of the worker on 12 July 2016. The occupational therapist has also documented her observations and findings in a report dated 4 August 2016. She found that the worker can undertake full-time work based on his demonstrated capacity during the assessment.
  8. The details provided in the medical information supports the worker can return to some type of full-time employment. I accept this.
  9. I will now turn to the worker’s capacity to lift or carry.
  10. When addressing the worker’s lifting or carrying capacity in the certificate dated 8 December 2016, the NTD recommends the worker is to “avoid prolonged heavy / manual tasks. Avoid repetitive loads or jarring to right arm.” The NTD also comments on the certificate: “Consider functional assessment / work duties assessment as indicated to determine fitness for specific tasks / duties, or to guide appropriate job seeking / applications.”
  11. The occupational therapist’s functional assessment found that the worker is capable of light lifting at and below shoulder height with a limitation of work performed at overhead height. She further advised:
    • “The worker was noted to have a maximum lifting capacity of 9.5kg at floor and waist level, 8.5kg at shoulder level and a maximum bilateral carrying capacity of 9.5kg. The worker ceased the lifting tasks advising he had reached his maximum capacity and could not continue. Assessor ceased the carrying tasks after observing the compensatory techniques of shoulder elevation indicating he had reached his maximum capacity.”
  12. The occupational therapist also recommends the worker “avoid prolonged or repetitive tasks at or above shoulder height due to decreased range of movement observed in the worker’s shoulder.”
  13. The occupational therapist provides the only recommendations quantifying the worker’s capacity for lifting or carrying. I accept her recommendations. I also consider NTD’s comment that the worker’s fitness be assessed through a functional assessment adds weight to the occupational therapist’s findings given his position as the nominated treating doctor.
  14. I find that nature of the worker’s incapacity is such that his maximum capacity to lift or carry is 9.5 kilograms and I find he is to avoid prolonged or repetitive tasks at or above shoulder height. The information before me does not support the worker is suited to employment as a traffic controller, store person, or in customer service/sales (warehouse/tools) having regard to these findings.
  15. For instance, the rehabilitation consultant reports contacting three employers in relation to each of the proposed roles. The store person and customer service/sales (warehouse/tools) employer contacts all advised “The employee will be required to lift and carry products weighing up to 10kg.” In relation to employment as a traffic controller, the contact at Altus Traffic advised that employees could be required to aid team members in lifting a sandbag weighing up to 10 kilograms when necessary. Motis stated that employees would not be required to lift more than 10 kilograms. The employer ORS Group advised that lifting would generally not exceed 10 kilograms.
  16. Further, the rehabilitation consultant describes that customer service/sales (warehouse/tools) employees may participate in stocktakes and they may stack and display goods for sale. This does not support that employees could avoid prolonged or repetitive tasks at or above shoulder height. The information before me, including the rehabilitation consultant’s contact with employers in the open labour market, is silent on this.
  17. I acknowledge the independent consultant, NTD and occupational therapist have supported that the worker is suited to employment as a traffic controller, store person, or customer service/sales (warehouse/tools).
  18. However, it is important to note suitable employment as defined in section 32A of the 1987 Act “means employment in work for which the worker is currently suited […].” This is not merely a theoretical exercise. There must be a real job in the employment market, regardless of whether that work or the employment is available or whether the work or the employment is of a type or nature that is generally available in the employment market, that is suitable for the worker having regard to the relevant factors provided in the definition.
  19. In reading the rehabilitation consultant’s description of the duties that may be required of the roles together with the expressed employer comments, the information before me is that employment as a traffic controller, store person, or customer service/sales (warehouse/tools) requires lifting up to 10 kilograms. This exceeds the limitation placed on the worker’s lifting or carrying capabilities as provided in the medical information before me.
  20. On the information provided, including the medical information before me, I am not satisfied the worker is suited to employment in the proposed roles having regard to the nature of his incapacity.
Operator, Driver Maintenance and Repairs
  1. The NTD advises on the certificates of capacity that the worker is “Fit for numerous job types (e.g. Operator, driver).” The worker advised the rehabilitation consultant he is “self-employed working in maintenance and repairs and noted this is not consistent.”
  2. The Insurer has not made submissions addressing whether those roles constitute suitable employment for the worker and there is limited information before me addressing their vocational requirements.
  3. However, I note that the worker is 56 years of age. The rehabilitation consultant does not indicate that the worker has any work experience as an operator or driver. There is no indication that his operating or driving skills have been assessed or alternatively that the worker has been provided with occupational rehabilitation services to develop his skills to a level required of employment as an operator or driver. On balance, I am not satisfied employment as an operator or driver constitutes “suitable employment” for the worker.
  4. It appears the worker has been self-employed in maintenance and repairs since 2007. The NTD, on the certificates of capacity, describes that the worker undertakes work as a handyman / plasterer / painter. There is no assessment of the worker’s work duties before. The NTD has expressed an opinion on the certificates of capacity that a “work duties assessment as indicated to determine fitness for specific tasks / duties, or to guide appropriate job seeking / applications” be undertaken.
  5. Notwithstanding this, the worker is self-employed and I accept that his role requires invoicing clients. The worker submits he is dyslexic. He submits a friend completes invoicing for him.
  6. I have considered the Insurer’s submissions the worker has not supplied any contemporaneous evidence of his alleged dyslexia and learning difficulty and that he did not disclose his alleged literacy and numeracy difficulties to the work capacity assessors.
  7. However, the rehabilitation consultant details in the vocational assessment report:
    • The worker reported English is his first language. The worker reported being diagnosed with Dyslexia, and noted his reading, writing and numeracy skills were at a basic level.
  8. The rehabilitation consultant also administered an academic skills assessment. It produced the following findings:
    • Word reading: The worker achieved a score equivalent to the percentile rank of 25%. This is comparable to the average score for students completing the 8th month of grade 10.
    • Sentence comprehension: The worker achieved a score equivalent to the percentile rank of 7%. This is comparable to the average score for students completing the 8th month of grade 6.
    • Spelling: The worker achieved a score equivalent to the percentile rank of 1%. This is comparable to the average score for students completing the 8th month of grade 2.
    • Math computation: The worker achieved a score equivalent to the percentile rank of 6%. This is comparable to the average score for students commencing grade 4.
    • Reading composite: The worker achieved a score equivalent to the percentile rank of 10%. There was no comparable level of schooling provided.
  9. The rehabilitation consultant details her skills analysis of the worker in 22 and 23 of the vocational assessment report. There is no indication the worker possess a level of invoicing skills or experience commensurate to what is required of his role.
  10. The difficulty I have here is that I must consider that suitable employment means employment in work for which “the worker” is currently suited having regard to factors such as the “the worker’s” skills and work experience.
  11. There is no information before me that the worker has the skills to prepare invoices. In fact, the information as submitted supports that he does not have the skills and that he requires assistance from others to fully perform all aspects of the role.
  12. On the information provided, including the vocational information before me, I am not satisfied the worker is suited to employment in the role having regard to his skills and work experience.

Findings on suitable employment

  1. In considering the above and the matters referred to in section 32A of the 1987 Act, I am not satisfied the worker is currently suited to employment as a Traffic Controller, Store Person, or Customer Service/Sales (Warehouse/Tools), operator, driver or maintenance and repairs.
  2. I note that the worker submits that he previously suffered an injury to his foot. However, I am satisfied on the basis of his left arm injury alone, and any incapacity arising from such, that he is not suited to the proposed vocational options before me.
  3. While the medical information before me supports that the worker may have some physical capacity for work, I am not satisfied it adequately supports he is able to return to work in “suitable employment” as defined by section 32A of the 1987 Act.

Pre-injury employment

  1. It is the opinion of The NTD and Ms Fisher that the worker has a present inability arising from an injury such that he is not able to return to work in his pre-injury employment. I accept this, and I note this is not disputed by the worker.

Findings on current work capacity

  1. I find the worker has a present inability arising from an injury such that he is not able to return to work, either in his pre-injury employment or in suitable employment.
  2. I therefore find the worker has “no current work capacity” as defined by section 32A of the 1987 Act.

Entitlement periods for ongoing weekly payments

  1. The following provisions of the 1987 Act provide the basis for determination and calculation of the 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 in accordance with subsections 38(6) or (7), but only if the special requirements for continuation of weekly payments after the second entitlement period are met in accordance with section 38 of the 1987 Act.
  2. In the reply to the worker’s application for merit review, the Insurer indicates that 271 weeks of weekly payments of compensation has been paid. Therefore, the worker has received more than 130 weeks of weekly payments of compensation.
  3. Accordingly, his entitlement to weekly payments of compensation currently falls after the second entitlement period and is to be determined in accordance with section 38 of the 1987 Act.

Special requirements for continuation of weekly payments after second entitlement period

  1. A worker with “no current work capacity” is only entitled to weekly payments of compensation under section 38 of the 1987 Act if the following special requirement is met:
    • A worker who is assessed by the Insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
  2. I have found that the worker has no current work capacity and noting the matters to which I have referred to in these reasons, I find that he is likely to continue indefinitely to have no current work capacity (that is, for the foreseeable future, or until such time there is adequate information to support he is able to return to work in “suitable employment” as defined in section 32A of the 1987 Act).
  3. I find that the worker meets the special requirements under section 38(2) of the 1987 Act to be entitled to weekly payments of compensation.
  4. As the worker has no current work capacity, his entitlement to weekly payments of compensation is to be calculated under section 38(6) of the 1987 Act. This section provides:
    1. The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of: (AWE × 80%) – D