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Findings and recommendations on merit review 001/15

Merit Review Service decision reference: 001/15

Date of review: May 2015

Findings on review

The following are findings made by the WorkCover Authority of New South Wales (the Authority) on review and are to be the basis for the Insurer’s work capacity decision.

  • 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.
  • The worker has no current work capacity, and is likely to continue indefinitely to have no current work capacity.
  • The worker is an existing recipient of weekly payments of compensation.
  • 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

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 44(3)(g) of the 1987 Act.

  • In accordance with section 38 of the 1987 Act, the worker’s entitlement to weekly payments of compensation is $788.32.

Background

The worker sustained a lower back injury on the date of injury in the course of their employment as a Registered Nurse.

The worker was medically retired and has not returned to any form of employment to date. The worker has been in receipt of weekly payments of compensation from the Insurer.

In light of amendments introduced by the Workers Compensation Legislation Amendment Act 2012, the Insurer made a work capacity decision in January 2015, ceasing the worker’s weekly payments of compensation under section 38 of the 1987 Act. This decision was provided to the worker under letter dated that day.

The worker applied for an internal review of the Insurer’s work capacity decision. This application was received by the Insurer in March 2015. The Insurer conducted an internal review and made a decision in March 2015, which was sent to the worker under letter dated that day. The worker has confirmed receiving the notice of the Insurer’s internal review decision in April 2015.

The worker applied for a merit review by the Authority. The application was received by the Authority in April 2015. The application has been made in the form approved by the Authority and within 30 days as required under section 44(3)(a) of the 1987 Act.

No issues have been raised in either the submissions or in the other material before me regarding the validity of this application for review by the Authority.

Legislation and guidelines

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

  • Workers Compensation Act 1987 (“the 1987 Act”);
  • Workplace Injury Management and Workers Compensation Act 1998 (“the 1998 Act”);
  • Workers Compensation Regulation 2010 (“the Regulation”);
  • Guidelines for work capacity decision Internal Reviews by Insurers and Merit Reviews by the Authority applicable from 11 October 2013 (“the Review Guidelines”); and the
  • WorkCover Work Capacity Guidelines as amended (“the Work Capacity Guidelines”).

Section 43 of the 1987 Act defines a “work capacity decision”.

Section 44 of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.

Documents considered

The documents I have considered in undertaking this review are those listed in, and attached to, the application for merit review, the Insurer’s reply and any further information submitted by the parties.

Since the lodgement of the application for merit review and the Insurer’s reply, both parties have been given the opportunity to provide further information to the Authority and respond to the other party’s submissions.

Submissions

In the application for merit review, the worker makes the following submissions:

  • They feel that the work capacity decision should be changed as they have not had a fair and accurate assessment.
  • They feel that the examination by the assessing doctor was not thorough enough. The assessment should be made after two or more visits, or by more than one doctor. The visit lasted less than half an hour.
  • They believe a current scan of the affected area would be of great value.
  • They feel that their treating doctor of 30 years has a better insight into their physical capacity than a doctor who has seen them for half an hour without any scans to back his decision.
  • The occupational rehabilitation report was also based on two, two hour assessments and they believe that this is an unrealistic and unreliable method of determining capacity as it does not take into account their status before or after the assessment.
  • They feel that the “visit” with the occupational rehabilitation provider was too brief and should have been conducted over several sessions as they got several facts wrong, including in respect to their computer skills and a statement made that they had been living a “sedentary lifestyle” which they have not.
  • They weren’t given a reasonable amount of time to seek suitable employment.
  • They have not received any assistance or retraining over the past 14 years to find suitable employment.
  • All of the jobs identified by the occupational rehabilitation provider require more computer skills than what they have.
  • The decision about suitable employment is based on the general labour market and does not take into the limited regional labour market, where there are limited jobs.
  • They will have to give up all their medical treatment if payments are cut.

In the reply to the application for merit review, the Insurer makes a number of submissions to the specific points raised by the worker, including:

  • In relation to the various submissions regarding medical information, the Insurer submits that the work capacity assessment and decision were based on a review of all the available information, including the assessments of independent doctors and the assessment and feedback from the worker’s nominated treating doctor and treating providers.
  • While the work capacity decision took the assessing doctor’s reports into account, it also considered the role of the treating doctor which has certified the worker with current capacity for work, on reduced hours commencing at 2 hours per day, 3 days per week.
  • The findings of the assessing doctor are consistent with the findings of the functional assessment undertaken by the occupational rehabilitation provider. Upon receipt of this information, the treating doctor agreed that the worker had a capacity for work however advised that this is for 2 hours per day, 3 days per week with restrictions. The restrictions are consistent with the assessing doctor’s findings and the functional assessment.
  • Based on the balance of the information, the Insurer has determined that it is reasonable, given the length of time out of the workforce, that the worker has a capacity for work on reduced hours initially. The treating doctor agrees that the worker has a capacity for work.
  • As the worker is not working and has been in receipt of over 130 weeks of weekly payments of compensation, they do not meet the special requirements for a continuation of weekly payments after the second entitlement period.
  • It is noted that upon completion of the internal review decision (March 2015), the worker was certified as having no capacity for work from April 2015. Updated information regarding the reason for the change in capacity has been requested from the treating doctor and will be forwarded to the Authority upon receipt.
  • The Insurer also makes a number of submissions in response to the submissions raised by the worker regarding ongoing medical expenses and suitable employment.

Reasons

Nature of merit review

This matter involves a merit review of the work capacity decision of the Insurer in accordance with section 44(1)(b) of the 1987 Act.

The review is not a review of the Insurer’s processes in making the work capacity decision and/or the 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.

Current work capacity and suitable employment

The worker sustained a lower back injury on the date of injury when they turned a patient over with a co-worker while working as a Registered Nurse. The worker worked on a part-time basis, 12 hours per week at this time. The worker experienced lower back pain as well as weakness and numbness in both their legs.

The worker ceased working following the injury and was retrained in administrative/reception work. The information before me indicates that the worker subsequently worked as a Receptionist for 10 hours per week for a period of six months however was unable to sustain this work as a result of the prolonged sitting and increasing numbness in her legs. The worker was medically retired in late 2001 and has not returned to any form of employment to date.

In relation to the medical information before me, I note that there is a large amount of information which is somewhat dated, dated in 2010 and prior, and/or that does not contain information which I have found relevant to an assessment of the worker’s capacity for work. Given that that this review relates to current work capacity, I have had more regard to the recent information before me for the purposes of this review and will therefore not refer to the information dated prior to 2010.

The assessing doctor conducted an Injury Management Consultation with the worker in August 2014. In the report of the same date, the assessing doctor notes that the worker reported ongoing chronic mid and low back pain. The Injury Management Consultant states that the worker presented with a long history of mechanical back pain complicated by having pre-existing back surgery and back pain prior to the injury. The worker used a walking stick and continued to undergo hydrotherapy and take a number of different types of medications.

Specifically in terms of capacity for work, the assessing doctor opines that “...it would be reasonable to commence with 4 hours a day, 3 days a week, and upgrade according to [the worker’s] progress” and that the worker was only fit for “sedentary duties” with the following restrictions:

  • No lifting, pulling or pushing of more than 2 – 3kg
  • No bending, stooping or twisting
  • To be able to change posture as required

The assessing doctor contacted the worker’s treating doctor as part of the assessment. The treating doctor reportedly agreed that the worker does have the capacity for some work but clerical duties only, and to commence with 2 hours per day, 3 days per week.

In a supplementary report dated  December 2014, the assessing doctor agrees that three vocational options proposed by the Insurer would be suitable for the worker as long as they avoided the restrictions the Independent Management Consultant had identified in their initial report. The Independent Management Consultant then states:

“As far as hours are concerned, given that [the worker] is now aged 60, and the injury originally occurred some 14 years ago it would be reasonable in my opinion to commence with 4 hours a day, 3 days a week and upgrade according to [the worker’s] progress”.

In October 2014, the worker underwent a functional assessment with the occupational rehabilitation provider. The results of the functional assessment are contained in a report dated  October 2014. The occupational rehabilitation provider assesses that the worker has the capacity to work 4 hours per day, 3 days per week and specifies her restrictions as follows:

  • Stand up to 15 minutes at a time constituting a reduced tolerance
  • Walk up to 30 minutes provided there are opportunities to pause and rest constituting a reduced tolerance
  • Sit for up to 30 to 40 minutes at a time with opportunity to alter posture constituting a reduced tolerance
  • Reach forward to work at chest bench height for up to 3 minutes at a time with opportunities provided to modify posture regularly or take micro-pauses, constituting a reduced tolerance
  • Reach at or above head height for periods of up to 3 minutes at a time of three times per hour constituting a limited tolerance
  • Climb stairs for a period of less than a minute up to 2 times per day, constituting a limited tolerance and rare frequency
  • Carry up to 2.5kg in left hand over a distance of 12 metres.

The only other report before me dated post 2010 is a report in respect to an MRI of the worker’s lumbar spine dated  February 2015. The report provides the following conclusion:

1. Multilevel degenerative arthritis and disc disease, most severe at L4/5.

2. Severe central canal narrowing L4/5 due to disc bulge/osteophyte complex. The passing L5 nerve roots are likely impinged within the lateral recesses.

3. Other findings as described above.

The WorkCover NSW medical certificates / certificates of capacity before me date back to the worker’s injury. With the exception of two certificates, the treating doctor consistently certified the worker as having no capacity for work until the certificates dated  October 2014 and January 2015 where the treating doctor certified a capacity for some type of employment for 2 hours per day, 3 days per week with restrictions, in line with the discussion with the assessing doctor. I note however that the treating doctor notes on these certificates that “pt [patient] has no chance of physical improvement in RTW in any capacity – functional assessment this week”.

In the most recent certificate of capacity before me dated  April 2015, the worker’s capacity for work is again downgraded to no current work capacity for any employment until  July 2015. The treating doctor makes the same comment noted on the previous certificates and further comments: “No ability to do home duties X3/52 Re – Back/leg pain” and “...Deteriorating function – in all ADLS – needs neurosurgical review of worsening bilateral leg pain to the worker's treating specialist”. In the section titled “Referral to another health care provider”, the treating doctor notes “none for many years – at least 10 yrs ago”.

In a return facsimile dated  May 2015, the treating doctor responds to a number of questions from the Insurer, predominately relating to the recent downgrade in the worker’s capacity for work. The treating doctor lists a number of medications that the worker continues to take and makes the following comments:

“...walking and mobility are severely limited. Requires walking stick for L leg incapacity.”

“Major mobility problems are [the worker’s] main problem. Minimal functional capacity.”
“Assessment with neurosurgeon re – guided injection for spinal stenosis, physiotherapy for gait correction and continue to use walking aids.”

“[The worker’s] physical capacity continues to deteriorate and [the worker’s] ability to walk is non-existent.”

“See MRI deterioration of lumbar spine study 18/2/15.”

In response to a question whether there are any other conditions or psychosocial factors affecting the worker’s capacity for work, the treating doctor responds: “[The worker] has L Knee OA and L foot OA with...to worsen her problem with mobility”.

I note that the information before me indicates that the worker suffers from some pre-existing conditions not related to the injury subject to this review.  Based on the information before me however, particularly the MRI investigations undertaken in February 2015, the treating doctor’s certificates of capacity and the above facsimile, it appears that the worker’s injury subject to this review has recently further deteriorated. While the treating doctor agreed with the assessing doctor at the time of their consultation that the worker had some capacity for work, in the preceding certificates of capacity the treating doctor specifically refers to a deterioration of the work-related injury and advises that the worker requires a review by a Neurosurgeon.

I acknowledge the assessing doctor and the occupational rehabilitation provider’s opinion that the worker has some capacity for work however I note that these assessments are relatively dated now given the recent information before me, particularly the MRI results and the information subsequently provided by the treating doctor. As submitted by the worker, neither the assessing doctor nor the occupational rehabilitation provider had recent medical imaging available to them for review at the time of their assessments. In fact, the assessing doctor notes in thier report that the scans that they reviewed were all undertaken prior to the work-related injury in April 2000.

Further, I attribute significant weight to the treating doctor’s opinion, given their position as the worker’s treating doctor and the regular reviews with the worker. The worker submits that treating doctor has been their treating doctor for 30 years. I am satisfied that the worker’s treating doctor has an informed insight into the history of the injuries and the worker’s capacity for employment resulting from the work-related injury.

For the above reasons, particularly the history of treating doctor’s medical certification as well as the recent MRI investigations, I find that the worker currently has no capacity for employment in accordance with treating doctor’s certificate of capacity dated  April 2015.

Section 32A of the 1987 Act defines “no current work capacity” 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.

As I have found that the worker has no capacity for any type of work, it follows that the worker has a present inability arising from an injury such that they are not able to return to work in pre-injury employment or to any other employment. I therefore find that the worker has no current work capacity in accordance with the definition in section 32A of the 1987 Act.

Existing recipient of weekly payments

An “existing recipient of weekly payments” is defined in clause 1, Part 19H, Schedule 6 of the 1987 Act as:

Existing recipient of weekly payments means an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments.

The Insurer has confirmed in their reply to the application for merit review dated  May 2015, that the worker was in receipt of weekly payments of compensation immediately before 1 October 2012. On this basis, I am satisfied that the worker was in receipt of weekly payments immediately before the commencement of the weekly payments amendments and I find that the worker is an existing recipient of weekly payments.

The weekly payments amendments as provided in Division 2, Part 19H, Schedule 6 of the 1987 Act therefore apply to the worker’s entitlement to weekly payments of compensation.

Entitlement periods for ongoing weekly payments

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:

  • Weekly payments in the first 13 weeks are to be determined in accordance with section 36 of the 1987 Act (“the first entitlement period”);
  • Weekly payments in weeks 14–130 are to be determined in accordance with section 37 of the 1987 Act (“the second entitlement period”); and
  • 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”).

The Insurer indicates in their reply that the worker has received 743 weeks of weekly payments of compensation. In the absence of any information to the contrary, I am satisfied that the worker’s entitlement to weekly payments of compensation currently 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)

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) 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.

Noting the matters to which I have referred in these reasons, 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 that there is adequate information to support that the worker has the capacity for employment and is able to return to work in suitable employment.

The worker is therefore entitled to continuation of weekly payments of compensation after the second entitlement period in accordance with section 38(2) of the 1987 Act.

The worker’s entitlement to weekly payments of compensation is to be calculated in accordance with section 38(6) of the 1987 Act:

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

Calculation of entitlement

“AWE” means the worker’s pre-injury average weekly earnings. Schedule 6, Part 19H, Clause 9 of the 1987 Act provides for the following in relation to an “existing recipient of weekly compensation”:

(3)  For the purposes of the application under this clause of the weekly payments amendments to a worker, the worker’s pre-injury average weekly earnings are deemed to be equal to the transitional amount.

The transitional amount applies for the purpose of calculating “AWE”. The transitional amount is currently $985.40.

“D” is the amount of any non-pecuniary benefits, which, on the information before me, is nil.

Applying the abovementioned formula under section 38(6) of the 1987 Act, The worker’s entitlement to weekly payments of compensation is calculated as follows:

($985.40 x 80%) – $0 = $788.32

The worker is therefore entitled to weekly payments of compensation in the amount of $788.32 per week.

Merit Review Service
Delegate of the WorkCover Authority of NSW