Open scrollable table of contents

Print entire document

Findings and recommendations on merit review 046/18

Our Reference: 046/18
Date of review: March 2018

Findings

  1. The following are the findings of the State Insurance Regulatory Authority (the Authority) on review and are to be the basis of a review decision by the Insurer.
  2. The Worker is able to return to suitable employment as a research nurse in accordance with the definition under section 32A of the Workers Compensation Act 1987 (the 1987 Act).
  3. The Worker is able to earn $461.54 per week in suitable employment.
  4. The Worker's pre-injury average weekly earnings (PIAWE) are $1,647.89.

Recommendation based on findings

  1. The Insurer is to calculate the Worker's entitlement to weekly payments of compensation in accordance with my findings above from November 2017.
  2. This recommendation is binding on the Insurer in accordance with section 44BB(3)(g) of the 1987 Act.

Background

  1. The Worker injured their ankle in the course of their employment with the pre-injury employer.
  2. In November 2017, the Insurer made a series of work capacity decisions in relation to the Worker and determined that their entitlement to weekly payments of compensation was $489.50 per week.
  3. The Worker applied for an internal review of the work capacity decisions. The Insurer conducted the review and made the same decision as the work capacity decision maker. The date of the notice to the Worker is January 2018.
  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:
  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:
    • A decision about what is suitable employment for them.
    • A decision about the amount that they are able to earn in suitable employment.
    • A decision about their PIAWE.
  2. The Worker's submissions in support of their application for merit review are summarised as follows:
  • The Worker is legally represented.
  • The Insurer has provided an internal review which is dated January 2018.
  • In a letter dated April 2017 the legal representative made a claim on the Worker’s behalf. The claim asserted that the pre-injury average weekly earnings were the combined sum of the Worker’s two jobs that they had prior to suffering the injury.
  • Prior to suffering the injury they worked for the pre-injury employer as their primary job but they also had a second job working as an on-call nurse for Employer 2.
  • As set out in the application for internal review, dated December 2017, the Worker calculated that they were averaging $262.19 gross per week in their secondary employment as an on-call nurse.
  • The request for internal review and a PAYG Payment Summary for secondary employment was attached with the application for merit review.
  • The PAYG Payment Summary is dated July 2017 and sets out their earnings with Employer 2 for the period 1 July 2015 to 30 June 2016.
  • They earned $13,634 in that period. When divided by 52 weeks this equates to $262.19 gross per week.
  • The internal review decision of the Insurer states "there was no evidence of capacity for secondary employment".
  • It further states "you have not provided a pay slip from your secondary employment to confirm that you were working during the stated incapacity for work".
  • They have provided a PAYG Payment Summary for the work with Employer 2. That is evidence of their earnings during the 12 months prior to the injury.
  • They do not understand what the Insurer means when it states "there was no evidence of capacity for secondary employment".
  • They are fit for suitable duties in their current role with the pre-injury employer. They are being provided with suitable duties in that place of employment.
  • They are not fit for any of the secondary employment as an on-call casual nurse as there is no ability by that employer or obligation by that employer to provide them with suitable employment.
  • The WorkCover certificates of capacity (certificates of capacity) that the Worker has been providing to the employer have typically stated that they are fit for 8 hours of work per day, 2 days per week. These are the hours that they have been performing with the pre-injury employer on suitable duties.
  • There is evidence on the certificates of capacity that they have no capacity for the secondary employment, by reason of the fact that they are certified as fit for 16 hours per week.
  • The Insurer has adequate evidence to make a determination of whether or not they have capacity for their secondary employment based on the certificates of capacity that have been supplied by the nominated treating doctor.
  • The Insurer has not included the secondary employment in the calculation of their PIAWE and this is an error.
  • The Insurer has indicated that it considers that the roles of research nurse, tele-nurse and clinical nurse consultant (CNC) and has determined that they are able to earn $736 per week.
  • The role of a CNC is not suitable employment for them as this role is also referred to as a clinical nurse specialist (CNS). The role of a CNC/CNS requires a specific postgraduate qualification that they do not have. They have attached a fact sheet from the Australian Nursing Federation in support of this submission. They are not legally entitled to work as a CNC.
  • The Insurer has stated that the Worker could work for 16 hours per week as a tele-nurse and earn $600.80 working for Medibank Private. However, as the work capacity decision states that they could earn $736 as a CNC, addressing these earnings is not required.
  • The Insurer has also stated that they could work as a research nurse. After contacting three employers advertising for the role, the role is stated by the Insurer to return $461.54, $516.06 or $548.84 respectively for two days of work per week. None of these jobs pays $736 for 2 days of work.
  • They are not able to earn $736 in suitable employment. They are presently working 16 hours per week on suitable duties and earning $43.26 per hour.
  • In the current circumstances, the correct method for calculating the amount that they are able to earn in suitable employment is to use their current earnings with the pre-injury employer, being $692.16 gross per week.
  • The Insurer has not provided primary documentation setting out the earnings of any of the occupations in the vocational assessment. There is no award attached by the Insurer.
  • In reply, the Insurer's submissions may be summarised as follows:
    • The Worker has capacity to work 16 hours per week based on the medical reports and their current condition.
    • Suitable employment has been identified as a research nurse, tele nurse and clinical consultant.
    • An occupational rehabilitation provider completed a labour market analysis in September 2017 and contacted employers to determine the Worker's ability to earn in the suitable employment roles.
    • It was determined that the Worker's ability to earn was $736 for 16 hours per week. Based on the labour market analysis, it was documented that the Worker has the necessary skills to undertake the role.
    • The nominated treating doctor approved the roles based on the Worker's functional capacity.
    • The Worker continues to be certified as having capacity for 16 hours per week and there has been no change to their functional restrictions.
    • It refers to an email regarding an enquiry about the Worker's PIAWE calculations in relation to their secondary employment.
    • The Worker continues to be employed with the pre-injury employer and their current weekly earnings are $708.58.

    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.

    Suitable employment

    1. The Worker has applied for a merit review of the Insurer's decision as to suitable employment options for them. In conducting the review, I am to have regard to the definition of "suitable employment".
    2. "Suitable employment" is defined in section 32A of the 1987 Act as:
    3. Suitable employment, in relation to a Worker, means employment in work for which the Worker is currently suited:

      (a) 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

      (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.

    4. Nature of incapacity. On internal review, the Insurer found that the nature of the Worker's incapacity is that they are:
    • Able to work for 8 hours per day, 2 days per week.
    • Able to lift less than 6kg.
    • Should stand as tolerated.
    • Should not push or pull.
    • Should not bend, twist or squat.
    • Should walk short distances of less than 50 metres at one time.
  • The Worker has not referred the Insurer's findings in regard to the nature of their incapacity for a merit review. I have therefore proceeded to assess suitable employment for the Worker based on the findings of the Insurer, set out above.
  • Suitable employment options. The Insurer has relied on a labour market analysis report prepared by a rehabilitation consultant employed by the occupational rehabilitation provider. The report is dated September 2017.
  • The rehabilitation consultant identified 3 types of employment that they considered to be suitable employment for the Worker, these were:
    • Research nurse
    • Tele nurse
    • Clinical nurse consultant
    • |

    Research nurse

    1. The Worker has previously worked as a research nurse. The rehabilitation consultant has described the roles as being largely sedentary in nature, with two of the three employers who were contacted, indicating that the roles were desk based and that lifting and walking were not inherent components of the work.
    2. One of the three employers who were contacted indicated that there was a role within the organisation for a research nurse for 8 hours of work per day, 2 days per week.
    3. The Worker has the necessary tertiary qualifications in addition to work experience that is in this field of work. I have noted that as part of their return to work plan with the pre-injury employer, the Worker has also been doing an increased amount of computer based work and I am satisfied that they have the necessary skills and experience to undertake the role of a research nurse.
    4. I therefore find that the role of a research nurse is suitable employment in accordance with the definition under section 32A of the 1987 Act.

    Tele nurse

    1. Two of the employers of tele nurses required candidates to work 10 or 12 hour shift and this requirement is incompatible with the Worker's incapacity arising from their injury. The third employer has simply noted that the role lends itself to part time work, however, there is no information as to the number of hours in each shift or the number of shifts per week that candidates are required to do.
    2. I am not satisfied on the basis of the information contained in the labour market analysis report that work as a tele nurse is work to which the Worker is suited when having regard to the nature of their incapacity.
    3. Despite the Worker's suitability for the role from the perspective of their education and work experience, I am not persuaded that the role is suitable employment for them, when balanced with a lack of information as to whether they could undertake the role within their functional tolerances.
    4. I therefore find that the role of a tele nurse is not suitable employment for the Worker in accordance with the definition under section 32A of the 1987 Act.

    Clinical nurse consultant

    1. The rehabilitation consultant contacted 3 employers of clinical nurse consultants.
    2. The Worker has made submissions that they have never worked as a clinical nurse consultant and that they do not have the necessary work experience or level of education to undertake such employment.
    3. The Worker has provided a flyer put out by the Australian Nursing Federation. The flyer indicates, among other things, that the role of a clinical nurse specialist (which they assert is the same as a clinical nurse consultant) requires a postgraduate qualification that is approximately 5-6 years duration.
    4. The first employer contacted did not indicate a requirement for post-graduate qualifications. However, they required someone who was able to speak in front of groups and who had experience in telephone based psychosocial support.
    5. The information that has been provided to me does not indicate that the Worker has experience in presenting to groups or in telephone based psychosocial support. I am therefore not satisfied that they would be a fit for this particular clinical nursing role.
    6. Additionally, there is no specific information that the employer has work for a clinical nurse consultant for 8 hours per day, 2 days per week.
    7. The second employer contacted, also did not specify levels of qualifications that were required for the role of a clinical nurse consultant. I have, however, been persuaded by the information provided by the Worker from the employer that the role is one of specialisation and that candidates are expected to have a post-graduate degree.
    8. In addition, I note that while "part time" work is said to be available, that the hours and number of days are not specified.
    9. The final employer contacted stated that they required post-graduate qualifications in oncology nursing. The rehabilitation consultant did not clarify whether this would include a graduate certificate, which is the level of qualification that the Worker has attained.
    10. There is again the issue that there is no indication of whether there is work for this employer for 8 hours per day, 2 days per week.
    11. For the reasons outlined above, I find that the role of a clinical nurse consultant is not suitable employment for the Worker in accordance with the definition under section 32A of the 1987 Act.

    Findings as to suitable employment

    1. In accordance with my reasons above, I find that only the role of a research nurse is suitable employment for the Worker in accordance with the definition under section 32A of the 1987 Act.

    Ability to earn in suitable employment

    1. I have found that the Worker is able to work as a research nurse. Of the roles that were outlined in the labour market analysis report, I was satisfied that the role with the  identified employer was suitable employment for the Worker within the definition under section 32A of the 1987 Act.
    2. The role of a research nurse with the employer is paid at the rate of $461.54 for 8 hours per day, 2 days per week. This is the amount that I find that the Worker is able to earn in suitable employment.

    PIAWE

      Employment overview

    1. The Worker has referred the Insurer’s calculation of their PIAWE for review. At the time of their injury, the Worker was employed by two separate employers. At the time of their injury, they were incapacitated to work for both of their employers.
    2. The Worker is not under the age of 21, they are not an apprentice and according to their contract of employment is not required to undergo further training to become qualified.
    3. At the time of their injury, the Worker was employed with the pre-injury employer in accordance with the Public Health System Nurses and Midwives (State) Award (the Award). Their employment with their secondary employer (Employer 2) was governed by a contract which is dated October 2012 and does not refer to any fair work instrument./li>
    4. At the time of their injury, the Worker worked for the pre-injury employer for 30 hours per week and worked varying hours for Employer 2 but these were consistently less than 10 hours per week.
    5. PIAWE. As a person with 2 or more employers (and therefore of a class referred to in Column 2 of an item in Schedule 3 of the 1987 Act), section 44C(4) of the 1987 Act required the Worker's PIAWE to be calculated in accordance with column 3 of the relevant item.
    6. Column 2 of Schedule 3. The Worker does not fall within any of the 3 descriptions set out in item 1 of Schedule 3 of the 1987 Act. The ordinary hours of work under the Award are 38 per week and the Worker therefore did not work at least the ordinary hours prescribed in the fair work instrument (being the Award). The prescribed hours of work in accordance with the Regulation are 38, under Part 3, Clause 7. The Worker did not work the prescribed hours in their role with Employer 2.
    7. As the Worker was incapacitated to work for both of their employers at the time of their injury, they do not fall under the description at item 7 of Schedule 3 of the 1987 Act.
    8. There is no information that suggests that the Worker had been given advice in writing that they had been promoted to a different position and they therefore do not fall within item 9 of Schedule 3 of the 1987 Act.
    9. I therefore find that the Worker is a Worker of the kind described in Column 2 of Item 8 in Schedule 3 of the 1987 Act.
    10. Column 3 of Item 8 of Schedule 3 of the 1987 Act sets out the following method for calculating the PIAWE of a Worker that falls within the description under Column 2, as follows:
    11. The worker's pre-injury average weekly earnings are the worker's average ordinary earnings expressed as an amount per hour for all work carried out by the worker for all employers multiplied by:

      (a) the prescribed number of hours per week, or

      (b) the total of the worker's ordinary hours per week,

      whichever is the lesser.

    12. Ordinary earnings. The method for calculating the Worker's PIAWE requires the determination of their average "ordinary earnings". "Ordinary earnings" are defined as follows under section 44E(1) of the 1987 Act as follows:
    13. Subject to this section, in relation to pre-injury average weekly earnings, the ordinary earnings of a worker in relation to a week during the relevant period are:

      (a) if the worker's base rate of pay is calculated on the basis of ordinary hours worked, the sum of the following amounts:

      (i) the worker's earnings calculated at that rate for ordinary hours in that week during which the worker worked or was on paid leave,

      (ii) amounts paid or payable as piece rates or commissions in respect of that week,

      (iii)  the monetary value of non-pecuniary benefits provided in respect of that week.

    14. The definition of ordinary earnings includes references to the "relevant period" and the worker's "base rate of pay".
    15. Relevant period. The definition of ordinary earnings refers to the "relevant period". 'Relevant period" is defined under section 44D of the 1987 Act as follows:
    16. (1) Subject to this section, a reference to the relevant period in relation to pre-injury average weekly earnings of a worker is a reference to:

      (a) in the case of a worker who has been continuously employed by the same employer for the period of 52 weeks immediately before the injury, that period of 52 weeks, or

      (b) in the case of a worker who has been continuously employed by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer.

    17. The Worker was employed on an ongoing basis for each of their pre-injury employers for more than 52 weeks prior to their injury. I therefore find that the relevant period is July 2015 to July 2016 for each of their employers.
    18. Base rate of pay. "Base rate of pay" is defined under section 44G(1) of the 1987 Act as follows:
    19. (1) In relation to pre-injury average weekly earnings and current weekly earnings, a reference to a base rate of pay is a reference to the rate of pay payable to a worker for his or her ordinary hours of work but does not include any of the following amounts (referred to in this Division as base rate of pay exclusions):

      (a)   incentive based payments or bonuses,

      (b)   loadings,

      (c)   monetary allowances, (d) piece rates or commissions,

      (e)   overtime or shift allowances,

      (f)    any separately identifiable amount not referred to in paragraphs (a) to (e).

    20. The Worker was paid for both of their roles on the basis of the number of hours that they worked and was paid a base rate of pay, to which overtime and loadings applied from time to time, according to the payslips from each of their employers. I therefore find that the Worker's ordinary earnings are to be calculated in accordance with section 44E(1) of the 1987 Act.
    21. The Worker received allowances in their role working for the pre-injury employer, which are excluded from their ordinary earnings, as I consider that they were monetary allowances. Their base rate of pay, was the hourly rate that they received for their work in this role, which was $41.17895.
    22. In their role with Employer 2, the Worker was entitled to different rates of pay that were dependent on the time of day and the day of the week that they worked. The rate of pay for morning work on a week day was the lowest pay point on this scale. I consider that the rate for weekday morning work, which was $54.20 per hour until the week ending August 2015 and $55 per hour thereafter, was the Worker's base rate of pay. I consider that all of the higher rates of pay represented loadings for evening and weekend work.
    23. Calculation of PIAWE. To arrive at an hourly rate for all of the Worker's earnings in the relevant period, I have:
      • Determined their ordinary earnings by multiplying their base rate of pay for each role, by the hours worked in those roles,
      • Added the earnings from each role together to determine the total earnings for the relevant period,
      • And divided the total earnings by the total hours worked.
    24. That is:
    25. ((Base rate of pay x hours for pre-injury employer) + (Base rate of pay x hours for Employer 2)) + total hours

      = ($ 62,921.44 + $ 10,485.40) + 1,692.75

      = $73,406.84 + 1,692.75

      = $43.365435

    26. I find that the Worker's ordinary earnings, expressed as an hourly rate as required under Item 8 of Schedule 3 of the 1987 Act is $43.365435.
    27. I am required to multiply this hourly rate by the lesser of:
      1. The prescribed number of hours per week, or
      2. The total of the worker's ordinary hours.
    28. Ordinary hours. Section 44H of the 1987 Act sets out the definition of ordinary hours of work as follows:
    29. In relation to pre-injury average weekly earnings and current weekly earnings, the ordinary hours of work:

      (a) in the case of a worker to whom a fair work instrument applies are:

      (i) if the ordinary hours of work in relation to a week are agreed or determined in accordance with a fair work instrument between the worker and the employer—those hours, or

      (ii) in any other case, the worker's average weekly hours (excluding any week during which the worker did not actually work and was not on paid leave) during the relevant period, or (b) in the case of a worker to whom a fair work instrument does not apply:

      (i) if the ordinary hours of work are agreed between the worker and the employer, those hours, or

      (ii) in any other case, the worker's average weekly hours (excluding any week during which the worker did not actually work and was not on paid leave) during the relevant period.

    30. In their role with the pre-injury employer, the Worker's employment was governed by the Public Health System Nurses and Midwives State Award. This is a fair work instrument.
    31. When they commenced employment in 2008, the Worker was employed on a casual basis to work 24 hours per week. Their pay slips show that during the relevant period, the Worker most typically worked either 24 or 36 hours per week but that there were variations in this pattern that were not predictable.
    32. I therefore find that the Worker's hours of work were not determined in accordance with a fair work instrument and that their ordinary hours of work for the pre-injury employer are to be calculated in accordance with section 44H(1)(ii) of the 1987 Act.
    33. There is no information that has been provided to suggest that the Worker's employment with Employer 2 was subject to a fair work instrument. The Worker’s hours of work varied greatly with Employer 2 during the relevant period and I am satisfied that their ordinary hours of work should be calculated in accordance with section 44H(b)(ii) of the 1987 Act.
    34. Calculating ordinary hour of work for the pre-injury employer: the Worker worked a total of 1,528 hours and was either at work or on paid leave for 48 weeks of the relevant period. I have therefore calculated their ordinary hours of work for the pre-injury employer as follows:
    35. 1,528 / 48 = 31.83333 ordinary hours per week

    36. Calculating ordinary hours of work for Employer 2:  the Worker worked a total of 191 hours and was either at work or on paid leave for 20 weeks of the relevant period. I have therefore calculated their ordinary hours of work for Employer 2 as follows:

      191 / 20 = 9.55 ordinary hours per week.

    37. Total average ordinary hours per week. I find that the Worker’s average hours per week are to be calculated as follows:
    38. 31.83333 + 9.55 = 41.38 hours per week

    39. 41.38 hours per week, which is greater than the prescribed number of hours being 38 hours per week in accordance with clause 7 of the Regulations. I therefore find that for the purpose of calculating the Worker's PIAWE, I am to multiply their ordinary earnings (expressed as an hourly rate) by 38 hours per week as follows:
    40. $43.365435 x 38

      = $1,647.89

    41. I find that the Worker's PIAWE is $1,647.89.
    42. Merit Reviewer
      Merit Review Service
      Delegate of the State Insurance Regulatory Authority