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Findings and recommendations on merit review 007/18

Our Reference: 007/18

Findings on review

  1. The following are the findings of State Insurance Regulatory Authority (the Authority) on review and are to be the basis of a review decision by the Insurer.
  2. The worker has no current work capacity.
  3. The roles of case worker, factual investigator and mediation manager are not suitable employment for the worker.
  4. The worker’s ability to earn in suitable employment is nil.

Recommendation based on findings

  1. The Insurer is to calculate the worker’s entitlement to weekly payments of compensation in accordance with my findings set out above.
  2. The above recommendation is binding on the Insurer in accordance with section 44BB(3)(g) of the Workers Compensation Act 1987 (the 1987 Act).

Background

  1. The worker sustained a psychological injury in the course of their employment with the pre-injury employer.
  2. In October 2017, the Insurer made a series of work capacity decisions about the worker. The outcome of the decisions was that the Insurer determined the worker’s entitlement to weekly payments of compensation was nil. The worker was notified of the decisions in a letter dated that day.
  3. The Insurer conducted an internal review of the work capacity decisions. It affirmed the original work capacity decision and informed the worker by way of a letter.
  4. The Authority received the application for merit review in February 2018. The application has been accepted.

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. The worker’s submissions in support of their application for merit review are summarised as follows:
    • They would like a review of the Insurer’s refusal to pay for their re-education.
    • They would like a review of the decision to cease their compensation payments.
  2. In reply, the Insurer’s submissions may be summarised as follows:
  • In March 2018, the Insurer advised that it relied on its internal review decision.

Reasons

Nature of merit review

  1. 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.
  2. I will then make findings and may make recommendations about the work capacity decision that has been referred for review.
  3. 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

  1. “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 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

  2. Certificates of capacity. The worker has been diagnosed with psychological injury. The most recent certificate of capacity dated March 2018 issued by the nominated treating doctor indicates that the symptoms include those of a mood disorder, poor concentration and muscle tension.
  3. In the above certificate of capacity, the nominated treating doctor has indicated that the worker has capacity for employment for 2 hours per day, 5 days per week.
  4. The previously issued certificate of capacity was dated February 2018. That certificate contained the same information as the more recent certificate (set out above) but had certified that the worker had capacity for employment for 5 hours per day, 5 days per week. This certification was consistent with a certificate of capacity previously issued in January 2018.
  5. Prior to this, from August 2017 to January 2018, the worker had been certified as having capacity for work for 8 hours per day, 5 days per week.
  6. Psychiatrist report. I have a report from the psychiatrist, who saw the worker in July 2017. In their report to the worker’s rehabilitation consultant, the psychiatrist indicated that the worker’s symptoms were suggestive of an adjustment disorder with depressive symptoms. The psychiatrist noted that their cognitive ability was impaired at the time of the examination. They did not comment on the worker’s capacity for employment.
  7. Psychologist report. There is a report dated February 2018 prepared by the psychologist, that is addressed to the Insurer. Following psychological testing, the psychologist concluded that the worker presented with major depression and an adjustment disorder with anxiety. They noted that the worker would not be fit to undertake their substantive duties but that they should remain on alternate duties until they received further treatment and before any upgrades were recommended.
  8. Findings. It is clear from the psychologist’s report that the worker had an ongoing inability arising from their injury in February 2018. The nature of the inability is not clear from the report, however, I note that the worker was still presenting with psychological issues.
  9. The nominated treating doctor’s opinion is the only recent opinion that is available to me as to the worker’s actual capacity for employment. They have treated and observed the worker regularly throughout the life of this workers compensation claim and I consider they are well placed to determine the worker’s capacity for employment taking into account any inability arising from their injury.
  10. I consider that the nominated treating doctor’s assessment that the worker is not able to work full hours is supported by the recent findings of the psychologist.
  11. I therefore find that the worker has capacity for some type of employment for 2 hours per day, 5 days per week in accordance with the certificate of capacity issued by the nominated treating doctor for the period March 2018.

Suitable employment

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

    Suitable employment, in relation to a worker, meansemployment in work for which the worker is currently suited:

    1. having regard to:
      1. 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
      2. the worker’s age, education, skills and work experience, and
      3. 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
      4. any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
      5. such other matters as the WorkCover Guidelines may specify, and
    2. regardless of:
      1. whether the work or the employment is available, and
      2. whether the work or the employment is of a type or nature that is generally available in the employment market, and
      3. the nature of the worker’s pre-injury employment, and
      4. the worker’s place of residence.

Nature of incapacity.

  1. The nature of the worker’s incapacity is such that they are able to work 2 hours per day, 5 days per week.

Age, education, skills and work experience.

  1. The worker is 60 years old. They are highly educated and hold numerous tertiary level qualifications.
  2. The worker has held a number of roles during their career in the field of social work, dispute resolution and mediation. I understand from a report prepared by the rehabilitation consultant (dated July 2017), that the worker has developed extensive transferable skills in these roles which are listed in the report. I have read them in detail and will refer to relevant skills as required.

Return to work plans and occupational rehabilitation services.

  1. Return to work plans and occupational rehabilitation service materials were requested of the Insurer as part of the required documents for a merit review.
  2. No return to work plans have been provided and I understand that the worker has been terminated from their employment.
  3. There is an injury management plan that is dated March 2018, that indicates that the worker is to job seek with the assistance of the occupational rehabilitation services provider. The worker has made a handwritten notation that this was terminated in January 2018 and that they are job seeking independently.

Assessment of suitable employment options.

  1. The rehabilitation consultant determined three types of employment that they considered would be suitable employment for the worker. These were a case worker, factual investigator and a mediation manager.

Case manager.

The worker has extensive experience in case management. This is reported to have been a core part of their roles working in dispute resolution and also in their work arranging case conferences between parties.

  1. The worker’s work experience and skills gained through employment as well as their extensive mediation skills are consistent with the requirements of industry contacts which were reported by the rehabilitation consultant. While these contacts indicated that a 2 year social welfare diploma was required for the role, they also indicated that relevant industry experience could be substituted. The worker has the relevant qualification and more than 7 years of experience in case management and I am satisfied that they have the ability to work unsupervised.
  2. I am satisfied that the worker has the necessary education, skills and work experience for employment in the role of a case worker. I am satisfied that they do not require any further assistance through an occupational rehabilitation services provider despite the limited assistance that they have received as the information before me indicates that they are able to independently job seek.
  3. Having regard to the nature of the worker’s incapacity, I have found that the worker is able to work for 2 hours per day, 5 days per week. This is a very limited capacity for employment. Although the rehabilitation consultant has indicated that there are part-time roles as a case worker in the employment market, I am not satisfied that such roles exist for 2 hours per day, 5 days per week as there is no information within the vocational assessment report that supports this.
  4. Having assessed the relevant criteria, I am not satisfied that the role of a case worker is one to which the worker is suited when having regard to the nature of their incapacity and I therefore find that it is not suitable employment for them in accordance with the definition under section 32A of the 1987 Act.

Factual investigator.

  1. The role of a factual investigator requires candidates to gather information and assess physical scenes. They are required to conduct investigative activities, interview relevant parties, prepare reports and make findings.
  2. Employers contacted by the rehabilitation consultant indicated that they preferred experience or a background in insurance or retail claims investigation. One employer required experience in litigated matters. Although the worker has attained a certificate in workplace investigations, I am not satisfied that this level of qualification broadly covers the matters that are investigated by the employers contacted by the rehabilitation consultant.
  3. The worker has no work experience as a factual investigator and I am not aware that they have any particular skills in examining physical locations or gathering evidence. They have had no occupational rehabilitation services that would assist them to transition to such a role.
  4. Finally, there is no information to indicate that there are roles in the labour market for factual investigators for 2 hours per day, 5 days per week.
  5. For the reasons outlined above, I find that the role of a factual investigator is not suitable employment for the worker in accordance with the definition under section 32A of the 1987 Act.

Mediation manager.

  1. The worker has extensive mediation experience. They have used their mediation skills in their previous roles. Additionally, the worker has numerous qualifications in mediation. I understand from the vocational assessment report that employers of mediators frequently also require case management skills and I am satisfied that the worker also has high skill levels in this area.
  2. As with the role of a case manager there is no information to support that there is work as a mediation manager in the labour market for 2 hours per day, 5 days per week. I am therefore not satisfied that the role of a mediation manager is suitable employment for the worker within the definition under section 32A of the 1987 Act.

Finding as to suitable employment.

  1. As outlined above, I am not satisfied that any of the employment options identified in the vocational assessment report is suitable employment for the worker within the definition of section 32A of the 1987 Act.
  2. I therefore find that the worker has a present inability arising from an injury such that they are not able to return to work in their pre-injury employment or suitable employment.
  3. The worker therefore has no current work capacity in accordance with the definition under section 32A of the 1987 Act.

Ability to earn in suitable employment

  1. As I have found that the worker has no current work capacity, I find that their ability to earn in suitable employment is nil.

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