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057/18

Our Reference: 057/18
Date of review: October 2017

Findings on review

  1. The following are findings made by the State Insurance Regulatory Authority (the Authority) on review and are to be the basis for the Insurer’s review decision.
  2. The Worker has no current work capacity, and is likely to continue indefinitely to have no current work capacity.
  3. The Worker satisfies the special requirement for continuation of weekly payments of compensation after the second entitlement period, pursuant to section 38(2) of the Workers Compensation Act 1987 (the 1987 Act).

Recommendation based on findings

  1. The following recommendation is binding on the Insurer and must be given effect to by the Insurer under section 44BB(3)(g) of the 1987 Act.
  2. The Insurer is to calculate the Worker’s entitlement weekly payments of compensation at the applicable rate provided by section 38(6) of the 1987 Act from 22 May 2017.

Background

  1. The Worker has received weekly payments of compensation from the Insurer as a result of an injury they sustained during the course of their employment as a pick packer with pre-injury employer.
  2. In February 2017, the Insurer made a number of work capacity decisions. It found that the Worker was able to return to work in suitable employment and they had current work capacity. The Insurer also decided to cease the Worker’s entitlement to weekly payments of compensation effective from May 2017.
  3. The Worker referred the work capacity decisions for internal review by the Insurer. In September 2017, the Insurer affirmed its original decisions.
  4. The Worker then made an application for merit review which was received by the Authority in September 2017. The application has been made within 30 days, as required under section 44BB(3)(a) of the 1987 Act.

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. The information I have considered for this review are the application for merit review and the Insurer’s reply form, the documents listed in and attached to those forms, and any further information provided to the Authority and exchanged between the parties.

Submissions

  1. The Worker’s representative assisted the Worker in making their application for merit review. The following work capacity decisions of the Insurer are referred for merit review:
  • A decision about their current work capacity.
  • A decision about what constitutes suitable employment.
  • A decision about whether, as a result of her 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.
  • Any other Insurer decision that affects their entitlement to weekly payments.
  1. The Worker’s submissions in support of her application may be summarised as follows:
  • They do not believe they will be able to perform the suitable duties as determined by the Insurer or that they are currently fit for any employment.
  • The Worker provides extracts of the opinions provided by the neurosurgeon (September 2015), sport and exercise physician (October 2015 and December 2016) and consultant in orthopaedic and trauma (November 2016).
  • A Labour Market Provider, in a labour market analysis report dated December 2016, examines the roles of light process Worker and customer service/sales assistant.
  • The Insurer has no regard to their age. The Worker is 50 years old. The Worker is a person who has worked in manual labouring tasks all of their working career. They are at a disadvantage in regard to their age as they are not generally within an age bracket that would be considered by employers. They are not physically fit to perform physical roles. They are a person whose career has always involved manual labouring tasks.
  • Regarding their education, at best they have had on the job training. They have little to no transferrable skills to use to any prospective employer.
  • The definition of suitable employment requires and assessment of their hard skills, acquired through education and/or experience, and that are capable of assessment or measurement. A list containing “transferrable skills” which are by the very nature soft or generic skills is not sufficient to comply with the definition.
  • The “transferrable skills” should accurately reflect any real skills which would assist them in an employment setting. They have little to no transferrable skills that would assist them in the vocational option of customer service/sales assistant.
  • Their experience as a sales assistant was very early on in their working life and they last worked in such a role approximately 23 years ago.
  • The matter of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD is cited.
  • An assessment of whether there is a current work capacity must be made before proceeding to move through the definition of suitable employment. In this case, the certificate of capacity states that their lifting/carrying capacity “needs assessment from physio with their task ability.”
  • In a situation where the claimant is a person who has worked in a physically demanding job for their entire career, their lifting capacity would be information required before any labour market analysis or vocational assessment is performed.
  • There was no customer service skills utilised during their employment at employer A. They were picking and packing only. Their employment with employer B was some 23 years ago.
  • The employer identified as employer C appears not to have any vacancy. The employer D has no vacancy.
  • The Insurer must assess suitable employment in work for which the Worker is currently suited. This must be a real job on a realistic assessment of suitable employment under section 32A. The Insurer has failed to assess her on these counts.
  • Weekly benefits should be reinstated pursuant to section 38 on the basis that there is no current work capacity.
  1. In reply, the Insurer submits:
  • It relies on the most recent certificate of capacity dated July 2017 which certifies the Worker as having the capacity for employment for up to 5 hours per day, 5 days per week with restrictions.
  • The Worker has a present inability arising from an injury such that they are unable to return to their pre-injury employment, since the role requires them to contravene their restrictions.
  • The Worker has the functional capacity and vocational capability to perform the role of customer service / sales assistant, based on their capacity, transferable skills, employment history and the requirements of the role as referred to in its internal review decision.
  • The role of customer service / sales assistant is the only suitable employment option for the Worker.
  • The Worker has received 138 weekly payment compensation payments to date. They are not a Worker with high needs.
  • There is no information to indicate the Worker is currently working and is not in receipt of current weekly earnings of $185.00. Therefore they do not satisfy the requirements of section 38(3)(b) and their entitlements must be discontinued from May 2017.
  • Their capacity has remained the same since the internal review decision. The role of customer service / sales assistant is the only suitable employment option of the Worker in accordance with her functional capacity as stated in the certificate of capacity.

Reasons

Nature of merit review

  1. This matter involves a merit review of the work capacity decisions 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.
  2. 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.
  3. The Authority can only review the work capacity decisions of the Insurer with respect to the weeks covered by those decisions. In this matter, the Insurer advised its original work decisions became effective in May 2017. Accordingly, any recommendations made by the Authority will apply to weekly payments of compensation from that date.

Current work capacity

  1. The Worker commenced their pre-injury employment as a pick packer in 2007. They would pick and pack orders in the warehouse and complete general cleaning duties.
  2. In November 2012, the Worker bent down to pick up a stock item and they felt immediate and sharp pain in their lower back. They rested for a short period and at the end of the shift they went home to recover, however the pain did not settle with rest.
  3. This prompted the Worker to consult with their family physician who organised imaging, prescribed analgesics and referred them for physiotherapy. In January 2013, the Worker was referred to a neurosurgeon as their pain had not settled.
  4. The neurosurgeon determined on examination the presence of left L4 nerve root distribution related radiculopathy and they recommended a CT guided left L4 nerve root injection. The neurosurgeon arranged for an MRI of the lumbar spine. It confirmed the left postero-lateral disc protrusion compromising the left L4 nerve root.
  5. In assessing whether the Worker has “current work capacity” or “no current work capacity”, I am required to refer to the definitions under section 32A of the 1987 Act:

current work capacity,in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment

no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment

  1. The above definitions require me to consider whether the Worker can return to work, both in their pre-injury employment and in suitable employment.

Suitable employment

  1. Suitable employment means employment in work for which the Worker is currently suited having regard to, amongst other factors, the nature of their incapacity and the details provided in the medical information including, but not limited to, any certificate of capacity supplied by her (under section 44B).

Nature of incapacity and the details provided in the medical information

  1. The Worker’s treatment since the injury has remained conservative and has included physiotherapy, exercise, a series of cortico-steroid injections and analgesic medication. The details provided in the medical information describes that despite their treatment, the Worker continues to report significant and persisting pain.
  2. For instance, the sports and exercise physician has reviewed the Worker several times from late 2015 to June 2017. By report dated December 2016, the sports and exercise physician advises that the Worker has experienced an ache in their lower back since the injury, especially with standing up. They also report that the Worker had developed pain radiating down both legs during that past year.
  3. There are medical reports before me that were issued more than 2.5 years ago. While those reports have been useful in allowing me to gain an understanding of the Worker’s injury at the time they were issued, I am required to consider their current work capacity and their present inability arising from the injury. Given the Worker recently describes developing pain to additional body sites, I prefer the more recent reports before me when assessing their capacity for employment.
  4. The neurosurgeon last reviewed the Worker in relation to the injury in September 2015. They described following examination and discussion that the Worker is significantly troubled with pain. The neurosurgeon adds that they have the impression the Worker cannot return to work:

I get the impression, talking to them that they are unable to return to work but based on their level of symptoms I would encourage them as much as they are possible, I don’t know whether I can state categorically that they are fit to return to their pre-injury duties as all I can go on is her subjective reports, which say she is still significantly troubled.

  1. The Worker attended a functional assessment facilitated by an exercise physiologist in October 2015. The exercise physiologist expressed concerns that the Worker displayed excessive pain behaviours that affected their test performance. Their assessment found the Worker could not return to sedentary work. The exercise physiologist advised:

    [the Worker] cannot perform the full range of Sedentary work as defined by the US Dept. of Labor in the DOT. This is due to difficulties performing the dynamic strength, and the mobility demands of work.

    Please note that the overall level of work was significantlyinfluenced by the client’s inconsistent behaviour. Therefore, the unable to perform Sedentary level of work indicates a minimum ability rather than a maximum ability. A maximum overall level of work cannot be determined at this time due to inconsistent behaviour.

  2. In November 2016, the Worker attended an independent medical examination with the consultant in orthopaedics and trauma. in November 2016, the consultant in orthopaedics and trauma also reported that the Worker has substantial pain symptoms and stated they are unfit for work. They found:

    [the Worker] has residual substantial symptoms and signs of pain and activity limitations likely to be ongoing without surgical intervention. […]

    Without surgical intervention their back (and the leg) condition is considered to have reached maximum medical improvement. […]

    the Worker struggled in light duties for a while until their job was terminated because of their inability to work or carry out normal duties. In their current condition they are unfit for any work.

  3. Between May 2016 and May 2017, the treating doctor A was the Worker’s nominated treating doctor.
  4. The treating doctor A expressed concerns over the Worker’s pain symptoms during a medical case conference held in December 2016. they identified that the Worker may require assistance with the management of their pain and advised for this to be reviewed following an MRI and further consultation with the sports and exercise physician.
  1. The treating doctor A certified the Worker with the capacity to return to some type of employment for 5 hours per day, 5 days per week.
  2. The treating doctor B has issued the certificates of capacity since May 2017. They also certify the Worker with capacity to return to some type of employment for 5 hours per day, 5 days per week.
  3. In addressing the Worker’s pain, the most recent certificate states the Worker “had physio yesterday, back pain aggrevated [sic], sports and exercise physician advised for pain management awaiting pain management.”
  4. There are no other current opinions that specifically address the Worker’s capacity for employment.
  5. On one hand, I note the treating doctor A and treating doctor B recommend the Worker can return to some type of employment. However, the weight of medical information, provided by the exercise physiologist, neurosurgeon and consultant in orthopaedics and trauma, supports a finding that the Worker is unable to return to employment.
  6. I acknowledge the reports of the Worker’s subjective pain and pain behaviours. In this regard the sports and exercise physician last reviewed the Worker in June 2017. They state the Worker’s symptoms and chronic pain are disproportionate to their investigative findings.
  7. However, the sports and exercise physician’s examination revealed that the Worker still had painful and restricted lumbar motion in all directions and he recommends that the Worker requires the help of a pain management centre for review.
  8. The Worker was reviewed by a pain and rehabilitation specialist in September 2017.
  9. The pain and rehabilitation specialist reports that the Worker has “chronic sensitised mechanical lower back pain secondary to spondylosis and contributed to by central sensitisation.” Also, they state the Worker has persisting pain despite conservative treatment. It is described as severe pain in the lower back with referral to the bilateral legs down to the knee. They also say the Worker has significantly exaggerated their pain behaviour with guarding and hyper vigilance.
  10. The pain and rehabilitation specialist recommends the Worker to participate in a 12 week pain management program to address their perception of pain.
  11. A referral to pain management has been a consistent and long standing recommendation. I have noted the requests of the treating doctor A and treating doctor B and sports and exercise physician on this point. I will also note that in a certificate issued April 2016, the treating doctor A expressed in the Worker’s management plan “Please consider approval to see pain management, doctor as we discussed in November 2015. That should give them better support to deal with their pain.” the Worker is yet to complete a pain management program.
  12. Notwithstanding the above, I consider that the exercise physiologist, neurosurgeon and consultant in orthopaedics and trauma are well placed to assess the Worker’s capacity for employment.
  13. The neurosurgeon is a specialist neurosurgeon and they were the Worker’s treating specialist from the time of injury until September 2015. The consultant is an independent medical examiner and a specialist consultant in orthopaedics and trauma. Given this, I apportion significant weight to their medical opinions.
  14. Also, I note that the medical examiner has deferred their assessment of the Worker’s capacity to lift or carry to assessment by a physiotherapist. While the physiologist is an exercise physiologist, they assessed the Worker’s capacity for employment during a functional assessment and found the Worker could not return to sedentary employment due to their difficulties performing the dynamic strength and the mobility demands of work.
  15. On balance, given the expressed views of the exercise physiologist, neurosurgeon and consultant in orthopaedics and trauma, I am not satisfied that the Worker has the capacity to return to any type of employment having regard to the nature of their incapacity and the details provided in the medical information.

Age, education, skills and work experience

  1. Suitable employment also means employment in work for which the Worker is currently suited having regard to their age, education, skills and work experience.
  2. The Insurer submits the role of customer service / sales assistant is the only suitable employment option for the Worker.
  3. The rehabilitation consultant A and consultant B with the rehabilitation provider addressed the vocational requirements of the customer service / sales assistant role in a labour market analysis report (December 2016) and in a vocational assessment report (October 2015).
  4. Reportedly, employees sell goods and services such as food, clothing, hardware, household appliances, office supplies and cosmetics in retail and wholesale establishments.  Both rehabilitation consultant A and consultant B report having contacted three employers to further explore the vocational requirements of the role.
  5. The employers contacted by rehabilitation consultant B all express that previous 12 months retail experience is required. In considering the employer’s request for “experience,” it would be reasonable to conclude that they are seeking employees who can bring a desired skillset, understanding or familiarity to the role today.
  6. The Worker worked in a customer service role at employer B from 1986 to 1993. Their employment since is exclusive to pick packer roles at employer A (1994 – 2000) and employer E (2007 to 2014)
  7. Reportedly, the employers contacted by the rehabilitation consultant A considered that the Worker demonstrated customer service skills during their employment at employer F.
  8. However, their duties at employer F appear to be exclusive to work in the warehouse. they would file orders received from the office, pick up orders, move boxes, pack boxes and send them out for shipping. I have reviewed, and earlier described, the duties required of the Worker’s employment as a pick packer at employer E.
  9. A significant period of time has elapsed since the Worker worked as a customer service role. There is no indication they have demonstrated “excellent customer service” skills, which labour market contacts advise is required, in the past 25 years in employment. On this basis, I consider it likely that the Worker’s “experience” has been lost with time.
  10. I am required to assess whether the Worker is currently suited to the role having regard to the relevant factors contained in the definition of suitable employment.
  11. There is also no information to suggest the employers contacted by the rehabilitation consultant considered when the Worker last engaged in a customer service role. The employers contacted by rehabilitation consultant a appear to have mistakenly been advised that the Worker worked in a customer service focused role at employer F. Therefore, I place little weight on the employer comments such as the Worker’s “customer service skills would benefit them in this role, as it would allow them to ascertain the needs of customers.”
  12. Further, the employers indicate that employees undertake duties that may require the use of a computer. One employer expresses that basic computer skills are required for the role.
  13. I am not persuaded the Worker has a level of computer skills that is required of employment in a customer service / sales assistant role.
  14. The Worker’s level of computer skills has not been assessed. The Worker is 50 years of age and on the information before me, they have not worked in a role that required them to use computers. Their education history provided in the vocational assessment does not include computer training and there is no information to support the Worker has been provided with occupational rehabilitation assistance, if needed, to develop their computer skills to a level commensurate to what is required in employment as a customer service / sales assistant.
  15. In light of the above, I am not satisfied the Worker has the skills to be currently suited to work that involves tasks such as such as invoicing, confirming orders using “QuickBooks” and checking stock on a computer. There are other technical skills such as processing and handling cheques which the Worker does not appear to have experience in.
  16. In considering the above and the matters referred to in section 32A of the 1987 Act, I am not satisfied the Worker is currently suited to employment as a customer service / sales assistant having regard to their age, education, skills and work experience.

Findings on suitable employment and current work capacity

  1. Noting the reasons that I have provided above, I find the Worker has a present inability arising from an injury such that they are not able to return to work, either in their pre-injury employment or in suitable employment.
  2. I find the Worker has “no current work capacity” as defined by section 32A of the 1987 Act.

Entitlement to ongoing weekly payments

  1. In the reply to the Worker’s application for merit review, the Insurer submits that the Worker has been in receipt of weekly benefits for 138 weeks.
  2. Therefore, the Worker’s entitlement to weekly payments of compensation currently falls after the second entitlement period (after week 130) and is to be determined in accordance with section 38 of the 1987 Act.

Special requirements for continuation of weekly payments after second entitlement period

  1. A worker with “no current work capacity” is entitled to weekly payments of compensation under section 38 of the 1987 Act if the following special requirement is met:

    (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.

  2. It is the neurosurgeon’s opinion that the Worker “is unable to return to work.” The exercise physiologist’s functional assessment found that the Worker “cannot perform the full range of Sedentary work […] due to difficulties performing the dynamic strength, and the mobility demands of work.” The consultant in orthopaedics and trauma states that the Worker in their current condition “is unfit for any work.”
  3. Noting the matters to which I have referred to in these reasons and the information currently before me, I find 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 the Worker satisfies the requirement under section 38(2) of the 1987 Act and is therefore entitled to continuation of weekly payments of compensation after the second entitlement period in accordance with section 38(2).
  5. The Insurer had decided to cease the Worker’s weekly payments of compensation from May 2017.
  6. Instead, I recommend the Worker is entitled to weekly payments of compensation at the rate under section 38(6) of the 1987 Act:

(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:

(a) (AWE × 80%) − D, or

(b) MAX− D, whichever is the lesser

Merit Service Review
Delegate of the State Insurance Regulatory Authority