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Findings and recommendations on merit review 043/18

Our Reference: 042/18
Date of review: 

Findings

  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 a present inability arising from an injury such that they are not able to return to work in either their pre-injury employment or in suitable employment.
  3. The Worker has no current work capacity and is likely to continue indefinitely to have no current work capacity.
  4. 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”).
  5. The Worker is entitled to weekly payments of compensation at the applicable rate provided by section 38(6) of the 1987 Act.

Recommendation based on findings

  1. 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.
  2. The Insurer is to determine the Worker’s entitlement to weekly payments of compensation in accordance with my findings above from January 2018 (subject to any notice period required under section 54 of the 1987 Act).

Background

  1. The Worker sustained an injury to their wrists in the course of their employment as a Deli Assistant at their pre-injury employer. The Insurer accepts the date of injury as XXXXXXXX.
  2. The Insurer accepted liability for the injury and the Worker has been in receipt of weekly payments of compensation.
  3. The Worker is currently not working.
  4. In January 2018, the Insurer made a number of work capacity decisions. The Insurer determined that the Worker had capacity to work 16 hours per week and that the roles of Retail Assistant (Light), Customer Service Assistant and Concierge constituted suitable employment for them. The Insurer found that the Worker had current work capacity and did not meet the requirements under section 38 of the 1987 Act for ongoing entitlement to weekly payments of compensation.
  5. The Worker applied for an internal review of the Insurer’s work capacity decisions. In March 2018, the Insurer conducted an internal review and maintained its decision. The Worker was notified by a letter of the same date.
  6. The Worker subsequently made an application for merit review by the Authority. The application was received by the Authority in March 2018. The application has been made within 30 days after the Worker received notice of the internal review, as required under section 44BB(3)(a) of the 1987 Act. The application has been lodged in the form approved by the Authority.

Legislation

  1. The legislative framework governing work capacity decisions and reviews is contained in the:
  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 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.
  2. 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.

Submissions

  1. In the application for merit review the Worker makes the following submissions:
  • No change in circumstance since the previous merit review decision of March 2017.
  • Reference is made to the following documents attached to the application:
    • - Merit review decision dated March 2017
    • - Statements of the Worker dated September 2016 and February 2018
    • - Submissions dated January 2017 and February 2018
    • - Certificate of capacity dated January 2018
  • The submissions dated February 2018 state:
    • - Their situation has not changed since the merit review decision dated March 2017. They have the same ongoing symptoms and disabilities and incapacity for work and they continue, as a result of their injury, to have no current work ability to perform suitable employment. Their hands and wrists are getting worse.
    • - Their incapacity, age, education, skills and work experience are such that they are not capable of working in suitable employment. They may be able to do aspects of the proposed jobs but not all of the tasks which are essential components of the job.
    • - The new proposed suitable employments involve tasks which are beyond their capacity. Details are provided in their statements dated September 2016 and February 2018.
    • - There is no proper basis for the new work capacity decision.
    • - In January 2017, they made submissions in relation to an earlier work capacity decision for the merit review of that decision. They make the same submissions in relation to the current internal review and merit review applications.
  • The Worker’s submissions dated January 2017, extracted from the findings and recommendations on merit review dated March 2017, relevant to the current review are as follows:
    • - Their wrists and hands become painful with use. They can do things for a while but not on a sustained basis and not for periods of time which would enable them to do what would be required of them in an employment situation.
    • - An employer is not going to employ a person who cannot use their hands to perform their work on a sustained and productive basis. They cannot achieve sufficient levels of productivity to work in employment.
    • - They are not educated in computers and does not have the computer skills to be employed in the modern world. They cannot develop keyboarding and computer skills because of their injury.
    • - If they cannot do the full range of essential tasks which are required for the roles then they will not be employable in those roles, and consequently they have no current work capacity for those roles.
    • - There is no evidence that the employer was aware of the full nature of their restrictions and need to take breaks, or that they have permanent wrist problems.
    • - There is no evidence to establish that employers were aware of the full nature of their symptoms and disabilities.
    • - They cannot become more skilled in the use of computers because of symptoms in their hands and wrists, and they cannot train for roles and become more skilled and become productive enough to be educated in a real job in an employment situation.
    • - The pre-injury employer has a statutory duty to provide them with suitable employment. The pre-injury employer has failed to comply with its statutory duty. The pre-injury employer states that it was unable to provide them with suitable employment. Despite employing workers in clerical and customer inquiry roles the pre-injury employer has not offered them work of that kind, because their injuries prevent them from being sufficiently productive to make employment viable. If they are not productive enough for the pre-injury employer it is unrealistic to expect that they would be sufficiently productive to enable them to be employed elsewhere.
  • In reply to the Worker’s application, the Insurer submits:
    • In response to the Worker’s submission that there has been no change in circumstances since the merit review decision of March 2017, the Insurer submits that it accepts this submission and states that although the Worker’s physical condition has not changed since that decision, the vocational options identified have taken into consideration the merit review findings.
    • The Insurer accepts the submission of the merit review dated March 2017 and furthermore advises that the findings of the review have been taken into consideration when determining the revised vocational options.
    • The Insurer does not accept the Worker’s statement dated September 2016 as it was in response to a prior work capacity decision dated December 2017 and as such, is not relevant to the most recent work capacity decision dated January 2018.
    • In respect to the statement dated February 2018, the Insurer accepts that the Worker’s condition has stabilised and acknowledges that they could not physically complete the inherit requirements of their pre-injury role.  However, based on the Worker’s ongoing reviews with their treating doctors, their certifications indicate that their condition has not deteriorated and has remained the same since September 2016.
    • In response to the submission around the claim that the Worker could complete some of the role and does not possess the training or experience; the Insurer refers to the vocational assessment dated September 2017 whereby each option identified advised training would be provided on the job and experience was not necessary but only in some options advantageous.
    • Regarding the Worker’s concerns about taking breaks and ability to perform the role, the Insurer refers to the vocational assessment of September 2017 and advises that each option identified, particularly the Concierge role have the ability to take regular breaks.
    • The Insurer is satisfied there are roles, particularly as a Retail Assistant – Light and Concierge, which are considered suitable employment in line with section 32A of the 1987 Act. These vocational options were applied in the work capacity decision dated January 2018.
    • It is noted in the vocational assessment dated September 2017, that although the Worker encountered difficulties with a work trial with a retailer, there were other roles identified that were deemed as more suitable and these roles, for example Concierge, have been endorsed by the Worker’s treating doctor and applied in the work capacity decision dated January 2018.
    • The Insurer submits that the roles identified in the work capacity decision dated January 2018 does not require any qualifications or ability with computers and (if required) this can be taught when employment commences.
    • The Insurer submits in response to the concern of age as a barrier and ongoing pain, this has been addressed in the vocational assessment dated September 2017 and was not considered a barrier to obtaining employment.
    • The Insurer also does not accept the Worker’s submissions dated January 2017 as it is in relation to a prior work capacity decision dated December 2017 and as such, is not relevant to the most recent work capacity decision dated January 2018.
    • In respect to the Worker’s statement dated February 2018, the Insurer responds that there was no new information in this statement and the concerns raised have already been addressed with the response to the Worker’s submission dated February 2018.
    • In respect to the certificate of capacity dated January 2018, the Insurer accepts this certificate and notes that the Worker does have work capacity which has remained unchanged since September 2016.

    Reasons

    Nature of merit review

    1. This matter involves a merit review of the work capacity decision of the Insurer in accordance with section 44BB(1)(b) of the 1987 Act. The review is not a review of the Insurer’s procedures in making the work capacity decision and/or internal review decision. The review requires that 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.
    2. The Authority is only able to review the work capacity decisions of an Insurer that are referred for review by a worker in accordance with section 44BB.
    3. Section 43(1) of the 1987 Act describes the types of work capacity decisions that can be made by an Insurer.
    4. In their application for merit review dated March 2018, the Worker has referred the following work capacity decisions for review:
    • Decision about their current work capacity
    • Decision regarding suitable employment for them
    • Decision regarding the amount they are able to earn in suitable employment
    • Decision about whether, as a result of their injury, they are unable (without substantial risk of further injury) to engage in employment of a certain kind because of the nature of that employment.
  • These findings and recommendations will therefore be confined to a merit review of the above decisions of the Insurer, with the exception of a decision about the amount the Worker is able to earn in suitable employment as the Insurer has not made a decision in this respect on the notices before me.
  • Current work capacity and suitable employment

    1. It appears from the information before me that there is agreement between the Insurer and the Worker in relation to their physical capacity for work. The Insurer determined in its decisions that the Worker had capacity for work in accordance with the WorkCover NSW certificates of capacity at that time. The Worker has not disputed their capacity as certified on these certificates and submitted a WorkCover NSW certificate of capacity dated January 2018, in the same terms, as part of their application for merit review.
    2. I have a number of the Worker’s WorkCover NSW certificates of capacity before me dating back to December 2016. The certificates are issued by the treating doctors and consistently certify the Worker with capacity to work 4 hours per day, 4 days per week with “no more than 2 consecutive days”. On the most recent certificate dated March 2018, the Worker’s physical capabilities are outlined as follows:
    3. Lifting / carrying capacity: 2 kg
      Pushing / pulling ability: 5 kg
      Driving ability 30 minutes
      Comments “stable condition. Had assessment done on wrist, made pains lot more worse after this” and “wrists may be aggravated by prolonged use of computer keyboard and writing”.
    4. The only other medical information before me is a report from the treating doctor dated December 2016 and a Functional Capacity Evaluation Report dated September 2017.
    5. The report from the treating doctor dated December 2016 is a short report. The treating doctor states:
    6. The Worker is currently undergoing a lot of anxiety. They are not fit to pursue rehab in relation to further employment at this point time.

      This situation will be checked again at the end of the second week in January 2017.

    7. The Functional Capacity Evaluation Report dated September 2017 is prepared by the occupational rehabilitation consultant. In the background to the report, it is noted that the Worker reported a history of bilateral wrist injury, pain and up to 8 surgeries to both wrists over the life of their claim. It is noted that they attempted to complete work trials in retail assistant roles with two retailers however were unable to sustain these positions.
    8. The occupational rehabilitation consultant notes under ‘reported symptoms’ that the Worker’s pain is aggravated by prolonged typing/handwriting and repetitive upper limb movements. The occupational rehabilitation consultant tests the Worker’s postural and functional abilities and identifies their ‘critical functional limitations’ as follows:
    • Lifting or carrying weights greater than the above limits (3.75kg); and
    • Repetitive use of both upper limbs with up to 2.5kg for over 3 minutes at a time.
  • The occupational rehabilitation consultant states that the results indicate that the Worker would not have capacity for full-time work at present and would benefit from having rest breaks or performing a role that does only require occasional repetitive upper limb movements.
  • The occupational rehabilitation consultant concludes:
  • On the basis of this evaluation and analysis of results it is the assessor’s opinion that the Worker has the capacity to work to their current certified hours of capacity (4 hours, 4 days per week), with an improved lifting/carrying capacity of 3.75kg, and a push/pull capacity of 15kg. Following analysis of the above results, it is determined that the Worker would have the capacity to perform suitable employment within the above mentioned capacity within sedentary work strength, and sedentary workspace. The Worker would benefit from the ability to alternate their positioning (sitting/standing) and use of bilateral upper limbs and resting intermittently.

  • As part of their assessment, the occupational rehabilitation consultant also considered the vocational options of Retail Assistant, Customer Service and Concierge which had been identified as suitable work options for the Worker. The occupational rehabilitation consultant opines that the identified options are appropriate for the Worker as they are within their observed functional capacity, and allow them the ability to alternate postures and rest from completing bilateral upper limb movements whilst also engaging socially within a work environment with customers and other staff members.
  • With the exception of the treating doctor’s report from December 2016, the opinions expressed on the WorkCover NSW certificates of capacity and the occupational rehabilitation consultant’s report are relatively consistent in respect to the Worker’s capacity for work. It is agreed that the Worker has capacity to work 4 hours per day, 4 days per week and that they are limited in their lifting/carrying capacity and pushing/pulling ability. There is however differing opinion in relation to the extent of these limitations.
  • In respect to the differing opinions, while I acknowledge that of the occupational rehabilitation consultant and the detailed assessment they have provided, I attribute greater weight to the certificates of capacity where that assessment differs to that of the occupational rehabilitation consultant’s. This is predominately for the reason that the treating doctors, in their position as treating doctors, have had long term care of the Worker and the benefit of regular reviews as opposed to the occupational rehabilitation consultant’s one-off assessment. I have also had regard to the comment: “stable condition. Had assessment done on wrist, made pains lot more worse after this” which appears on the certificates of capacity dated after the occupational rehabilitation consultant’s assessment. The comment indicates to me that the Worker may have exerted force beyond their limit in the occupational rehabilitation consultant’s assessment.
  • For the above reasons, I find that the Worker has capacity to work 4 hours per day, 4 days per week working no more than 2 consecutive days and within the following capabilities/considerations:
    • Lifting/carrying capacity: 2kg
    • Pushing/pulling ability: 5kg
    • Driving ability: 30 minutes
    • “wrists may be aggravated by prolonged use of computer keyboard and writing”.
    • “pain is aggravated by prolonged… repetitive upper limb movements”
    • Avoid “repetitive use of both upper limbs with up to 2.5kg for over 3 minutes at a time”
    • Work “within sedentary work strength, and sedentary workspace”
    • “alternate… use of bilateral upper limbs and resting intermittently”
  • In order to determine whether the Worker has current work capacity, I am required to determine whether they are able to return to work to their pre-injury employment and in suitable employment.
  • Section 32A of the 1987 Act defines ‘current work capacity’ and ‘no current work capacity’.
  • ‘Current work capacity’ is defined 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’ is defined as:

    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.

  • The Worker was employed as a Deli Assistant in their pre-injury employment. There is no dispute between the parties in relation to the Worker not being able to return to this work. I am satisfied that the Worker has a present inability arising from an injury such that they are not able to return to their pre-injury employment.
  • In respect to whether the Worker is able to return to work in suitable employment, ‘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.

  • The information before me relevant to assessing suitable employment for the Worker includes a Vocational Assessment Report dated September 2017 prepared by the rehabilitation consultant, of the occupational rehabilitation provider, a number of progress reports and closure reports prepared by the occupational rehabilitation provider dated between February 2017 to January 2018, job application logs completed by the Worker and statements of the Worker dated September 2016 and February 2018.
  • The occupational rehabilitation provider’s vocational assessment report identifies the roles of Retail Assistant, Customer Service Operator and Concierge as suitable employment for the Worker.
  • The Worker’s age, education skills and work experience

    1. The Worker is over 50 years of age. They completed their school education to a Year 10 level.
    2. The occupational rehabilitation provider’s vocational assessment report and the Worker’s statement dated September 2016 provide information in relation to their employment history. The information provided in these documents is however somewhat inconsistent. The Worker advises in their statement: “all of my work experience has been in work as a deli assistant, bread carter and supermarket work”.  The occupational rehabilitation provider’s vocational assessment report however states that the Worker worked as a Customer Service Representative with a department store “more than 10 years ago”, was self-employed as a Bread Deliverer after that and then worked again as a Customer Service Representative at their pre-injury employment, from 2000 to 2014. It is not clear how long the Worker worked in the first two roles.
    3. Specifically, I find the references to ‘Customer Service Representative’ positions in the occupational rehabilitation provider’s report to be inconsistent with the description of the roles the Worker advises they undertook in their statement. Where the occupational rehabilitation provider’s report states the Worker worked as a Customer Service Representative, the Worker states they worked as a Deli Assistant or undertook “supermarket work”. In my view, employment as a Customer Service Representative and the duties involved in such work is significantly different to that involved in work as a Deli Assistant and in supermarket work. The Worker’s pre-injury employment is described differently again at the front of the occupational rehabilitation provider’s report, as ‘Shop Assistant’.
    4. Upon review of the occupational rehabilitation provider’s report and the duties listed under the two ‘Customer Service Representative’ roles it is reported the Worker undertook a work trial with a department store and the pre-injury employer there is some further confusion. The description of duties listed under these roles are somewhat general and do not reflect or align with the actual context of employment as a Customer Service Representative nor a Deli Assistant/super market work.
    5. In attempting to gain an understanding of the Worker’s work experience, I have found that some of the more specific duties listed under their employment with the pre-injury employer in the occupational rehabilitation provider’s report (below), support that their employment with the pre-injury employer would better be described as a Deli Assistant and not Customer Service Representative:
    • Responsible for safe shelf stock replenishment
    • Demonstrating flexibility in working in a variety of departments (including delicatessen, dairy, night fill, service, fresh produce and point of sale)
    • Assisting in the preparation and production of products to company
    • Filling and maintaining presentation of stock
    • Working within policies and procedures of OH&S and Food Safety to ensure a safe working environment for customers, staff and contractors.
  • Similarly, their employment with a department store reportedly as a ‘Customer Service Representative’ in the occupational rehabilitation provider’s report is noted to have included the following duties:
    • Providing customer service
    • POS transactions: cash register, cash handling, till reconciliation
    • Taking customer orders
    • Cleaning shop area, maintaining and stocking fridges, display cabinets
    • End of trade clean and set up for next trade day
    • Assisting in the preparation of produce for sale
    • Filling and maintaining stock presentation for display
  • In my view, the duties listed above appear to be more a description of duties undertaken by a Deli Assistant/supermarket work as opposed to Customer Service Representative which is more in the nature of duties involving interaction with customers on behalf of an organisation and providing information in relation to products and services. It is evident from the more specific duties listed in the occupational rehabilitation provider’s report that the roles the Worker undertook with the pre-injury employer and a department store involved work of a more manual nature in the preparation and sale of produce.
  • When having regard to the above, I prefer the information from the Worker to that in the occupational rehabilitation provider’s report with respect to the Worker’s employment history. That is, that all of their “work experience has been in work as a deli assistant, bread carter and supermarket work”. While such employment inevitably involved customer service duties, I do not accept the information from the occupational rehabilitation provider that the Worker was employed as a ‘Customer Service Representative’ with the pre-injury employer and a department store or that they have ever been employed in such a role.
  • With respect to the remainder of the Worker’s work experience, the information before me indicates that since their injury they have undertaken work trials with two retailers sourced through the occupational rehabilitation provider. The occupational rehabilitation provider’s Employer Closure Summary Report dated January 2018 notes that the Worker completed 15 days of the work trial with a retailer in or around October 2014 “however was not offered ongoing employment”. They reportedly commenced a work trial as a Sales Assistant with a retailer in July 2016 however only completed 2 shifts, advising that they were unable to continue due to a “flare up in their wrists and the impact the work trial was having on their non-compensable health”. Referring to both work trials, the occupational rehabilitation provider’s functional capacity evaluation report notes that the Worker “was unable to sustain these positions”.
  • The closure summary report also notes that the occupational rehabilitation provider sourced a further work trial for the Worker as a process worker with a manufacturer in March 2015 with the prospects of being followed by paid employment through a Job Cover Placement Program (JCPP) however the employer withdrew the offer for the work trial when the Insurer advised that the Worker “would not be eligible for the JCPP as they were making a work capacity decision”.
  • The occupational rehabilitation provider’s vocational assessment report provides an extensive list of transferrable skills assessed based reportedly on their participation in vocational counselling and past employment history. In respect to their computer skills, it is noted the Worker advised that they were not able to operate a computer and has not previously been required to operate computers in previous roles. They reportedly advised that their knowledge of programs such as Outlook, Explorer, Word and Excel is “very basic”. In their statement dated September 2016, the Worker advises:
  • I was educated at a time when computers were not available to individuals. I do not have computer skills and keyboarding skills. I know how to search for things on the computer and do emails but that is all. I am a slow and inaccurate typist. I am a one finger typist.

    Roles identified as suitable employment

    1. As noted above, the occupational rehabilitation provider’s vocational assessment report identifies the roles of Retail Assistant, Customer Service Operator and Concierge as suitable employment for the Worker. I am required to determine whether these roles constitute suitable employment for the Worker having regard to the definition of suitable employment under section 32A of the 1987 Act, set out above. Having regard to that definition and the information currently before me, I am not satisfied that either of the roles identified constitute suitable employment for the Worker.
    2. The occupational rehabilitation provider’s vocational assessment report does not provide general industry descriptions of the roles or the duties that may be involved in the roles, that are obtainable from ANZSCO or sources like Job Outlook. Rather the report provides information obtained from 3 employers contacted in relation to each role. While this information can be useful to support general industry information in relation to vocations identified, on its own it not an independently verifiable and authoritative source and does not hold the same probative weight as general industry information that is easily obtainable from sources as those noted above.
    3. Further, the occupational rehabilitation provider’s report does not provide details in relation to the store or representative of the employer the information was obtained from or the method of communication. The Worker also makes a number of submissions in relation to there being no evidence about what the employers were told regarding the nature of their injuries and the permanency of the injuries.
    4. Nevertheless, accepting the information that is currently before me, I do not find it supports that the Worker is able to return to suitable employment in the roles identified. I have outlined below some of the more specific reasons in relation to each role.

    Retail Assistant

    1. The 3 employers the occupational rehabilitation provider reportedly contacted in relation this role were a furniture retailer, a jeweller and a fashion retailer. I have similar concerns in relation to the roles with a furniture retailer and a jeweller. As outlined above, the Worker’s work experience has been confined to work as a Deli Assistant, Bread Carter and supermarket work. The Worker notes in their statement dated February 2018 that they had no training or experience in sales work. I accept this.
    2. I acknowledge that the Worker undertook some duties of accepting payment for goods in their previous roles however this is different to the customer service and sales skills required in work as a Retail Assistant for employers like a furniture retailer and a jeweller where their role would require them to promote and sell products. The contact made by the occupational rehabilitation provider to these employers supports this. The furniture retailer reportedly advised that “previous customer service and/or visual merchandising experience is highly regarded” and “basic computer skills are advantageous, however not essential” and the jeweller advised that “sales skills” were required and “previous experience in a customer service role”.
    3. I have similar concerns in relation to the third employer, a fashion retailer and in addition I also have concerns whether this role would be suited to the nature of the Worker’s incapacity. Although this role may not require the same level of sales skills, this employer sells similar products to employers the Worker undertook in their work trials. The occupational rehabilitation provider reports that the Worker was unable to sustain these roles and the Worker advises in their statement dated September 2016 that they could not “last” in the work trial with a retailer as “the work involved hanging clothing on hangers and mainly underwear. It was fiddly work involving repeated use of my hands”.
    4. On the information before me, I am not satisfied employment as a Retail Assistant is suitable employment for the Worker.

    Customer Service Operator

    1. The 3 employers contacted in relation to this role were an entertainment retailer, a council and a car rental company. As outlined above, I do not accept that the Worker has been employed as a Customer Service Representative in their previous employment.
    2. The role with an entertainment retailer appears to involve sales as well as dealing with customer enquiries and computer work. I therefore have similar concerns in relation to this role as those outlined above for the Retail Assistant roles. The occupational rehabilitation provider’s report states that the role includes duties to “assist customers with enquiries”, “develop quotes and price comparisons for customers” and “process sales, refunds and exchanges on computerised POS systems”. The Worker does not have experience in customer service at the level required for this role and has not undergone retraining to equip them with the skills to undertake these duties.
    3. The role at the council also involves assisting customers with enquiries and “providing knowledge of activities within a council”. It is noted that “no formal qualifications are required however highly regarded in Business Services or Administration as is previous experience in an administrative or customer service role (sic)”.
    4. The role with a car rental company reportedly requires employees to “complete rental and return transactions efficiently and accurately”, “sell a car rental company rental options to our valued customers” and “ensure overall customer satisfaction by resolving issues” among other duties. The skills required include “flair for sales”, “previous experience in customer service or sales; experience in rental industry preferred” and “basic computer and keyboard skills are essential”.
    5. I note that when assessing the suitability of work as a Customer Service Operator, the occupational rehabilitation provider’s report states:
    6. The Worker has all of these skills except computer skills. The occupational rehabilitation provider will encourage the Worker to use a computer when job seeking so they can build on their computer skills.

    7. I am not satisfied employment as a Customer Service Operator is suitable employment for the Worker.

    Concierge

    1. The 3 employers contacted in relation to this role were a cinema, a shopping centre and an aged care services company.
    2. I have similar concerns regarding this role for the Worker relating to a lack of relevant customer service experience and computer skills.
    3. The cinema reportedly advised that the role involved assisting customers with enquiries and “using computer operated POS systems”. The employer reportedly advised that “staff are not required to have computer skills” however this contradicts with the list of duties provided.
    4. The role with the shopping centre requires “answer[ing] incoming customer enquiries, providing customers with centre trading times and store information”. It is noted that “previous experience in a similar role is highly regarded” and “staff will complete some computer duties”.
    5. The role with the aged care services company also involves “assist[ing] customers with face to face, phone and online enquiries”. It is noted that “basic computer skills [are] advantageous” and “intermittent computer tasks are required”.
    6. I am not satisfied employment as a Concierge is suitable employment for the Worker.

    Return to work and occupational rehabilitation services

    1. In determining suitable employment under the above definition, I am also to have regard to any occupational rehabilitation services that are being, or have been, provided to or for the Worker and any plan or document prepared as part of the return to work planning process.
    2. As noted above, there are a number of return to work progress reports from the occupational rehabilitation provider before me and job application logs completed by the Worker. It appears the Worker has been assisted with regular job seeking sessions from January 2017 to January 2018 and has undertaken job seeking modules, including in developing resumes, cover letter writing, cold canvassing, interview skills, job website searches, injury disclosure and independent job seeking skills. The Worker has also been assisted in obtaining and undertaking the work trials noted above.
    3. I am satisfied that the Worker has received occupational rehabilitation assistance in job seeking however in respect to the return to work planning process, they have not received retraining or education tailored at assistance to return them to work in the roles identified above for which they lack the sales, customer service and computer skills.
    4. The Worker also makes a number of submissions in relation to the pre-injury employer failing to comply with its statutory duty to provide them with suitable employment and that it is unrealistic to expect that another employer who does not have such a duty would employ them with their functional restrictions. They submit that the pre-injury employer employs workers in clerical and customer inquiry roles however has not offered them work of that kind.
    5. The job application logs indicate that the Worker has applied for numerous roles with no success.
    6. I note that the occupational rehabilitation provider’s closure report indicates that job seeking assistance ceased because a work capacity decision was made and that a work trial with a manufacturer in March 2015 was cancelled because the Worker “would not be eligible for the JCPP as they were making a work capacity decision”. It is of importance to note that in accordance with section 59A(2) of the 1987 Act, compensation is payable to the Worker in respect to any occupational rehabilitation assistance provided after the expiry of the compensation period, that is at least 2 years under that section. Simply making a work capacity decision, which may be overturned, should not have the effect of immediately ceasing assistance that may be necessary in returning the Worker to work.

    Finding on suitable employment

    1. For the reasons noted above, in respect to the Worker’s confined employment history at the age of over 50 years, the skills they lack to undertake the roles identified and the absence of retraining, I am not satisfied that the Worker is able to return to work in suitable employment on the information currently before me.
    2. Given that the Worker has a present inability arising from an injury such that they are not able to return to work, either to their pre-injury employment or in suitable employment, I find that the Worker has ‘no current work capacity’, in accordance with the definition under section 32A of the 1987 Act.

    Entitlement periods for ongoing weekly payments

    1. The Worker’s ongoing entitlement to weekly payments is to be determined in accordance with the relevant entitlement period that is applicable at the time of review. The following provisions of the 1987 Act provide the basis for determination and calculation of a worker’s weekly payments entitlement:
      1. Weekly payments in the first 13 weeks are to be determined in accordance with section 36 of the 1987 Act (“the first entitlement period”)
      2. Weekly payments in weeks 14–130 are to be determined in accordance with section 37 of the 1987 Act (“the second entitlement period”); and
      3. 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 (“the post second entitlement period”).
    2. The Insurer indicated in its reply dated March 2018 that the Worker had been in receipt of 278 weeks of weekly payments of compensation. On the basis of this information, I am satisfied that the Worker’s entitlement to weekly payments of compensation 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 (after week 130)

    1. Section 38 of the 1987 Act provides that an entitlement to weekly payments of compensation after the second entitlement period is only available to a worker with ‘no current work capacity’ if special requirements are met as follows:
    2. (2)     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.

    3. Noting the matters to which I have referred to in these reasons and the information currently before me, I find that the Worker is likely to continue indefinitely to have no current work capacity. That is, for the foreseeable future or until such time as there is adequate information to support that they are able to return to work in suitable employment.
    4. I find that the Worker satisfies the requirement under section 38(2) of the 1987 Act and is entitled to continuation of weekly payments of compensation after the second entitlement period in accordance with section 38(2) of the 1987 Act.
    5. As the Worker has no current work capacity, their entitlement to weekly payments of compensation is to be calculated under section 38(6) of the 1987 Act. This section provides:
    6. (6)  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

    7. Given that I have found that the Worker has no current work capacity I recommend that the Insurer calculate the Worker’s weekly payments of compensation from January 2018 (subject to any notice period required under section 54 of the 1987 Act). That is the date of the Insurer’s work capacity decisions.
    8. I note that the Worker has also requested that the Authority review the Insurer’s decision as to whether, as a result of their injury, they are unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment. As I have found that the Worker has no current work capacity, it is not necessary for me to consider this matter.

    Merit Reviewer
    Merit Review Service
    Delegate of the State Insurance Regulatory Authority