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Findings and recommendations on merit review 006/18

Our Reference: 006/18

Decision

  1. The Authority declines to review the work capacity decisions of the former insurer dated April 2014 as the worker failed to provide information requested by the reviewer and on the basis that the application for merit review is frivolous and vexatious.

Background

  1. The worker injured their right knee and right wrist in the course of their employment with the pre-injury employer. The worker applied to the former insurer for weekly payments of compensation in relation to their injury.
  2. The former insurer made a series of work capacity decisions in relation to the worker. The result of the decisions was that the Insurer reduced the worker’s entitlement to weekly payments of compensation to nil. The outcome of the decisions was communicated to the worker in a letter dated April 2014.
  3. The worker applied to the former insurer, for an internal review of the work capacity decisions which was received by the former insurer in November 2017. The former insurer conducted the internal review and affirmed the original work capacity decisions.
  4. At some time between the date of the internal review and January 2018, carriage of the worker’s workers compensation claim was passed from the former insurer to the Insurer. It appears that during the transfer, not all of the documents relating to the worker’s claim were successfully passed to the Insurer or were not transferred in a timely manner as the Insurer has had some difficulty in locating certain documents.
  5. The Authority received the application for merit review in December 2017. While the Insurer has submitted the application for merit review was out of time, the date of application for merit review submitted by the Insurer is incorrect and I am satisfied that the application has been made in accordance with the requirement under section 44BB(3)(a).

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.

Information considered

  1. 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

  1. In the application for merit review, the worker has requested a review of the following work capacity decisions of the Insurer:
    • Their current work capacity.
    • What is suitable employment for them.
    • Their ability to earn in suitable employment.
  2. The worker’s submissions in support of their application for merit review are summarised as follows:
  3. They have injuries to their right knee, hand and wrist, their lumbar spine, cervical spine and a secondary psychological injury.
  4. The Insurer has accepted the injuries to the right knee as well as the hand and wrist. Both spinal injuries are disputed. It is not clear whether the Insurer has accepted the psychological injury.
  5. They sustained their injuries in the course of their employment when they stepped onto the edge of a block of wood which was lying on the floor causing them to stumble. They overbalanced and their toolbag on the shoulder swung forward. Their right knee twisted and the right hand/wrist crashed into a nearby pillar. This caused a sudden jolt up their body.
  6. In the incident, they also injured their lumbar spine and cervical spine and/or the incident caused an aggravation, acceleration, exacerbation and/or deterioration of a disease in their lumbar spine and/or cervical spine.
  7. At the time of the work capacity decision in April 2014 they were totally incapacitated for work. They remain so. This is clear from the treating medical evidence [sic] attached and their detailed statement.
  8. In June 2014, the treating orthopaedic surgeon performed decompression and fusion surgery on their cervical spine. In July 2015, they underwent further neck surgery in the nature of a C4-C7 fusion.
  9. In November 2014, their employer terminated their employment due to them being unable to carry out the inherent requirements of their pre-injury position.
  10. Their treating orthopaedic surgeon opines in their report of November 2016 that they will not return to gainful employment as a result of their condition. The independent medical consultant in their medico-legal reports agrees with the treating orthopaedic surgeon.
  11. There can be little doubt that they have no current work capacity and that the role of a service supervisor does not represent suitable employment.
  12. Suitable employment within the meaning of section 32A and section 43(1)(b) encompass consideration of all of their medical conditions, even if the relationship between the condition and work is disputed.
  13. The Insurer is not permitted to assess the effect of their knee and hand/wrist injury as if their neck and lower back impairments do not exist.
  14. It may well be if liability is ultimately not determined in their favour in the Workers Compensation Commission in relation to the back and neck injury, to the extent any incapacity is caused by those injuries it is non-compensable under the Act. But that is a different question.
  15. Further, and in the alternative, the Insurer does not appear to have considered the question of whether some part of their current total incapacity relates to their knee and hand/wrist injury.
  16. On the face of the decision, the Insurer has failed to consider any of their medical evidence, their statement or the fact that the employer terminated their employment on the grounds that they lacked the capacity to work. If it did consider these matters it has failed to give adequate reasons.
  17. The Insurer appears to have preferred to rely on its solicitor’s note from a teleconference of a proceeding which was discontinued following observations by an arbitrator. The material is not relevant to making a work capacity decision.
  18. In reply, the Insurer’s submissions may be summarised as follows:
    • The Insurer does not have a copy or record of the internal review decision referred to by the worker in their application for merit review.
    • The Authority does not have jurisdiction to conduct a merit review as there is no evidence that an application for internal review was made or that an internal review was conducted.
    • In the alternative, the worker’s application for merit review is out of time. The worker states that they received the internal review decision in November 2017 and the application for merit review was lodged with the Authority in January 2018. The Authority does not have jurisdiction to review the application for merit review as it has been made outside the time frames pursuant to sections 44BB(3)(a) and 44BB(3) of the 1987 Act.
    • In the work capacity decision issued in April 2014, the insurer that previously managed the worker’s claim found that they had current work capacity to work in suitable employment for 8 hours per day, 5 days per week. That insurer determined that the role of service supervisor with no manual handling involved was suitable employment for the worker given their functional capacity and transferrable skills, in accordance with section 32A of the 1987 Act.
    • As a result, the former insurer determined that the worker had the ability to earn $1,234.99 per week in suitable employment and ceased their payments to nil in July 2014 in accordance with section 37 of the 1987 Act.
  19. In February 2018, the Authority wrote to the worker’s solicitor and requested the following:
  20. Any medical, rehabilitation or other reports and opinions that relate solely to treatment or capacity arising from the injuries accepted by the Insurer under their claim. The Authority requires reports from 2014 to present day. The injuries that the Authority is referring to are the injuries to their right knee and right hand and wrist.

  21. The Authority asked for a response by 5pm on XX February 2018 as to when the worker could reasonably provide such information.
  22. No response was provided to the above request for information. The Authority sent a further request for information to the worker’s solicitor. The Authority indicated that the information currently available to the reviewer was either inadequate or irrelevant to the conduct of a merit review. It explained that if further information was not made available that the merit reviewer may decline to review the decision under section 44BB(3)(c) of the 1987 Act. The Authority again requested submissions as to a reasonable time frame for providing the requested information.
  23. On XX February 2018, the worker’s solicitor wrote to the Authority. The solicitor made submissions as follows:
    • The worker requested 28 days to obtain updated information as to their current work capacity in respect of their accepted injuries.
    • They noted that a request for a review of what constitutes suitable employment had also been made in addition to the amount that the worker is able to earn in suitable employment.
    • The review of suitable employment and ability to earn in suitable employment must take into account the whole of the worker’s medical circumstances (among other matters particular to the worker and not simply their injury). If that was not the case, it would lead to a perverse result that a worker obviously unsuited to a particular type of employment due to a non-work-related condition could be found to have an ability to earn in that employment. For example; a blind person who injures their arm at work cannot have an ability to earn driving a bus, irrespective of whether the arm injury would prevent the person from doing so.
    • The question of the worker’s “current work capacity” in respect of the accepted injuries is separate to the consideration of what constitutes “suitable employment” and what an injured worker is able to earn in suitable employment.
  24. On XX February 2018, the Authority wrote to the worker’s solicitor and indicated that it considered that 28 days was not a reasonable period for the provision of further information. It requested that all further information be submitted by XX March 2018 unless there were circumstances that warranted an extended period, in which case the solicitor should notify the Authority of those circumstances.
  25. On XX March 2018, the Authority contacted the worker’s solicitor to ask whether there would be any further information provided in respect of the worker’s accepted injuries. The Authority was advised that the worker did not intend to provide further information or submissions.

Reasons

The worker's spinal and shoulder injuries

  1. The worker has made a claim for compensation for an “injury” to their lumbar and cervical spine and left shoulder under the 1987 Act. According to the internal review decision by the former insurer and the submissions of the Insurer, liability for the injuries to the worker’s shoulder and spine have been declined.

Analysis of relevant provisions

  1. The worker has requested a review of their current work capacity.  
  2. “Current work capacity” and “no current work capacity” are defined in section 32A of the 1987 Act 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 their 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
  3. “Injury” is defined under section 4 of the 1987 Act as:
    1. means personal injury arising out of or in the course of employment,
    2. includes a disease injury, which means:
      1. a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
      2. the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
    3. does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
  4. As noted above, the Insurer has declined liability for the worker’s spinal and shoulder conditions. These injuries are therefore not an injury in accordance with the definition under section 4 of the 1987 Act.
  5. When assessing the worker’s “inability arising from an injury” for the purpose of determining their current work capacity, I must have regard to the inability arising only from an injury, in accordance with the definition under section 4 of the 1987 Act. In their case the injury in accordance with the definition under section 4 of the 1987 Act is the injury to the worker’s right knee and wrist.
  6. In support of their application for merit review, the worker has submitted numerous documents to support that they have an inability to work. I have reviewed each document in detail and set out my findings in relation to the relevance of the information contained in them below:
Date
Author
Summary
Finding
xx/4/2014
Independent medical consultant
Referral to the treating orthopaedic surgeon for spine review.
 
Not an injury
xx/04/2014
Independent medical consultant
Discussion regarding various spinal concerns and nerve conduction studies. No discussion of right knee or wrist.
 
Not an injury
xx/04/2014
Nominated treating doctor
Referral to the treating orthopaedic surgeon for spinal review.
 
Not an injury
xx/05/2014
Treating orthopaedic surgeon
Notes that the worker had 2 surgeries on the right knee without benefit and that they walked with a normal gait.
All examination carried out was on the spine.
 
All clinical findings were in relation to the worker’s spine. Notes in relation to the knee were background information only. I am unable to determine any incapacity for employment on the basis of the treating orthopaedic surgeon’s comment in relation to the right knee.
xx/6/2014
Radiologist
CT of cervical spine
 
Not an injury
xx/06/2014
Treating orthopaedic surgeon
Review post-surgery on cervical spine
 
Not an injury
xx/06/2014
Radiologist
Cervical spine x-ray
 
Not an injury
xx/07/2014
Treating orthopaedic surgeon
Referral in relation to shoulder
 
Not an injury
xx/07/2014
Radiologist
Cervical spine x-ray
 
Not an injury
xx/08/2014
Independent medical consultant
The right knee has had a good repair. There is no comment on work capacity in relation to the knee. The report focuses on the worker’s spine condition.
 
There is no information on which to form an opinion as to the worker’s work capacity in relation to their right knee.
xx/08/2014
Nominated treating doctor
Certificate of capacity. No current work capacity to xx/10/2014. Refers to incapacity as a result of recent surgery.
 
The only surgery in 2014 for which there is information is surgery to the worker’s spine. Any incapacity arising from the surgery is non-compensable and cannot be taken into account when determining current work capacity.
xx/09/2014
Treating orthopaedic surgeon
Opinion in relation to cervical spine. There is mention of the right knee injury but no opinion as to work capacity in relation to that injury.
 
The spinal condition is not an injury and no information as to work capacity in relation to the right knee is included in the report.
xx/10/14
Treating orthopaedic surgeon
Opinion in relation to cervical spine.
 
Not an injury
xx/01/2015
Radiologist
CT scan of cervical spine.
 
Not an injury
xx/01/2015
Treating orthopaedic surgeon
Opinion in relation to cervical spine.
 
Not an injury
xx/01/15
Radiologist
Cervical spine x-ray.
 
Not an injury
xx/03/2015
Independent medical consultant
Whole Person Impairment assessment.
 
No comment on capacity for employment. Multiple non-compensable conditions assessed.
xx/04/2015
Treating orthopaedic surgeon
Opinion in relation to cervical spine.
 
Not an injury
xx/04/15
Radiologist
Cervical spine x-ray.
 
Not an injury
xx/04/2015
Independent medical consultant
Medical opinion in relation to work capacity based on right knee injury and spinal complaint. There is a comment that the right knee is worse than the left (non-compensable complaint) and that the issues with the knees result in an inability to walk more than 150-200 metres without rest.
 
I am unable to determine any incapacity arising from the worker’s right knee in isolation from other non-compensable injuries.
xx/5/2015
Radiologist
Spinal MRI
 
Not an injury
xx/6/2015
Treating orthopaedic surgeon
Opinion in relation to cervical spine
 
Not an injury
xx/7/2015
Treating orthopaedic surgeon
Opinion in relation to cervical spine.
 
Not an injury
xx/08/2015
Treating orthopaedic surgeon
Opinion in relation to cervical spine.
 
Not an injury
xx/12/2015
Radiologist
Cervical spine x-ray.
 
Not an injury
xx/12/2015
Treating orthopaedic surgeon
Opinion in relation to cervical spine.
 
Not an injury
xx/03/2016
Independent medical consultant
The worker’s symptoms from their right wrist have resolved. They have pain in both knees, however there is no locking, jamming or giving way of the knees. Their right knee is perceived as being worse than the left. The remainder of the report relates to the worker’s spine which is said to be the worker’s major ongoing concern.
 
I am unable to determine any incapacity arising from the worker’s right knee in isolation from other non-compensable conditions.
xx/6/2016
Radiologist
Cervical spine x-ray.
 
Not an injury
xx/6/16
Treating orthopaedic surgeon
Review of spinal fusion outcome.
 
Not an injury
xx/11/2016
Treating orthopaedic surgeon
Their report relates to the worker’s spinal condition only.
 
Not an injury
xx/4/2017
Nominated treating doctor
There is an extract of the worker’s complete medical history at the medical practice of their nominated treating doctor. The notes in relation to the worker’s health are collective and it is not possible to determine from these notes any incapacity arising specifically from the injuries to the worker’s right knee and wrist.
 
I am unable to determine any incapacity arising from the worker’s right knee in isolation from their other medical conditions.
xx/04/2017
Independent medical consultant
Their report relates to a review of medical opinions from other doctors and an opinion as to causation for the worker’s spinal condition.
 
Not an injury
  1. I have listed above, all of the documents that post-date the original work capacity decision.
  2. I have also reviewed the documents that are dated prior to the work capacity decision. In November 2013, the orthopaedic surgeon, who conducted right knee surgery on the worker indicated (in a letter to the Insurer) that the worker was fit to return to suitable duties at work. It appears from other correspondence such as the letter from the treating orthopaedic surgeon, dated May 2014, the worker returned and continued to work in some capacity with their pre-injury employer up to that date, though I do note that there was a break in those duties over December 2013 and at least the first week of January 2014.
  3. Despite the apparent failure of the two right knee surgeries, the worker participated in suitable duties with their pre-injury employer on a part time basis after an initial recovery period. They did continue to complain of right knee “stiffness” according to nominated treating doctor’s clinical notes from March 2014, however, the major concerns medically seem to have arisen from the problems with the worker’s back after that date.
  4. In order to make a finding as to the worker’s current work capacity from the time of the initial work capacity decision to date, I require information in relation to the inability arising from an injury for which the worker has an accepted claim for workers compensation. These are the words of the legislation and a finding in relation to the worker’s current work capacity cannot be made without a determination of the worker’s inability arising from an injury.
  5. The worker’s solicitor has submitted that I am able to review the Insurer’s decision as to the worker’s capacity for suitable employment and their ability to earn in suitable employment, independent of a determination as to their current work capacity.
  6. The definition of “suitable employment” is set out under section 32A of the 1987 Act as follows:

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited

  1. 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(ii)  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 Workers Compensation 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. An assessment as to what is suitable employment for the worker requires me to have regard, among other things, to “the nature of the worker’s incapacity”. I consider that the incapacity referred to in the definition is the same incapacity that is referred to under the definition of current work capacity and that is “inability arising from an injury”.
  3. Regard to the nature of the worker’s incapacity when determining suitable employment is not discretionary. Consideration of the matter is fundamental to a determination as to suitable employment for the worker.
  4. Regardless of the worker’s solicitor’s submissions that I must take the worker’s other conditions into account, I cannot make a finding in relation to suitable employment as I have no information to assist me in making a finding as to the nature of the worker’s incapacity.
  5. Ultimately, a decision about what constitutes ‘suitable employment’ is inextricably linked to the definition of ‘current work capacity’ and ‘no current work capacity’ which requires that only the ‘present inability arising from an injury’ be considered.

Reasons

  1. Three and a half years elapsed between the work capacity decision, request for internal review and subsequent request for merit review. During that period, the former insurer was not actively managing the worker’s claim and therefore did not require or receive any information from the worker’s treating doctors in relation to their injury.
  2. Given these circumstances, I consider that it was incumbent upon the worker to provide information to the Authority to support their claim that they had no current work capacity in accordance with definition under section 32A of the 1987 Act, that is on the basis of their accepted injury.
  3. The worker, via their legal representative, declined to provide any information relating to their incapacity for employment based on their accepted injury. In the absence of such information, I am not able to conduct a review of their current work capacity, suSection itable employment options or their ability to earn in suitable employment, as I cannot determine their incapacity “arising from an injury”, in accordance with the definition under section 32A of the 1987 Act.
  4. Section 44BB(3)(c) and (d) of the 1987 Act state:

The following provisions apply to the review of a work capacity decision when the reviewer is the Authority or the Independent Review Officer:

  • the reviewer may decline to review a decision because the application for review is frivolous or vexatious or because the worker has failed to provide information requested by the reviewer,
  • the worker and the insurer must provide such information as the reviewer may reasonably require and request for the purposes of the review.
  1. On the basis that the worker has not provided information that the review reasonably requires and has requested, I am declining to conduct a merit review of the work capacity decision as permitted under section 44BB(3)(c) of the 1987 Act.
  2. Finally, the Insurer has declined liability for the worker’s spinal and shoulder conditions. To bring an application for merit review principally on the basis of these injuries is frivolous and vexatious. There are other appropriate avenues for disputing the Insurer’s decision in regard to liability for these conditions and to seek to circumvent those avenues by the means proposed in the submissions by the worker’s solicitor is frivolous and vexatious and I decline to review the matter on that basis also, in accordance with the provision under section 44BB(3)(c).

Merit reviewer
Merit Review Service
Delegate of the State insurance regulatory authority