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Findings and recommendations on merit review 002/15

Merit Review Service decision reference: 002/15

Date of review: August 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 [the worker’s] 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 an injury to their left knee on the date of injury in the course of their employment as a water treatment technician.

The worker’s employment was terminated in March 2012. The worker has not returned to work to date.

The worker has been in receipt of weekly payments of compensation from the Insurer.

The Insurer made a work capacity decision in April 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 internal review of the Insurer’s work capacity decision. The application was received by the Insurer in May 2015. The Insurer conducted an internal review and made a decision in June 2015. The worker has advised that they received the notice of the Insurer’s internal review decision in June 2015.

The application for merit review by the Authority was received in July 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 this review are those listed in, and attached to, the application for merit review, the Insurer’s reply and any further information provided to the Authority and exchanged between 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 and respond to the other party’s submissions.

Submissions

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

  • They would like the decision in relation to their current work capacity reviewed. This should be changed to 3 days a week, 6 hours a day.
  • They would like the decision in relation to suitable employment to be reviewed. They do not believe that the roles are suitable employment as they require retraining.
  • They would like the decision to discontinue weekly payments to be reviewed. The payments should continue until “permanent employment” is found.
  • In relation to the role of Electric Repairer (Small Appliance), identified as suitable employment by the Insurer, it is noted that the role is “light to medium” in physical demand. They ares restricted to “light” work, as seen on their WorkCover certificate of capacity.  Reference is made to three employers contacted who provided information in relation to the roles, confirming that the roles were more in line with a ‘medium’ physical demand and would require them to contravene their medical restrictions.
  • They are unable to squat, as stated on the medical certificate, and the roles identified by the Insurer in the internal review all required squatting.
  • They note that their age was identified as a barrier in the occupational rehabilitation provider’s vocational assessment report dated  May 2012.

In reply, the Insurer makes the following submissions:

  • At the time of the internal review, the worker was certified as being fit for suitable duties for full-time work with restrictions.
  • The worker is currently unemployed. The roles of Quality Assurance Officer and Electric Repairer (Small Appliance) have been identified as suitable employment within the meaning of section 32A of the 1987 Act.
  • Although the worker has functional limitations they have the necessary functional and vocational capacity to work as a Quality Assurance Officer and Electric Repairer (Small Appliance). The Insurer makes a number of submissions in respect to each role.
  • The worker has received 211 weekly payments of compensation to date. Section 38 of the 1987 Act applies. The worker has not returned to work for a period of at least 15 hours per week and is not earning at least $176.00 per week. Therefore the requirements under section 38(3)(b) of the 1987 Act have not been met.  The worker’s weekly payments of compensation are discontinued.

Reasons

Nature of merit review

This matter involves a merit review of the Insurer’s work capacity decision 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 an injury to their left knee on the date of injury.

The worker reported immediate pain at the time of the incident. The worker continued to work however experienced ongoing symptoms in their left knee. MRI investigations revealed a partial rupture of the anterior cruciate ligament.

In April 2011, the worker underwent a left knee arthroscopy. Following the procedure, the worker did not report significant improvements. The worker also did not report any improvements after attending significant physiotherapy.

The worker was able to return to work on suitable duties for 3 hours per day, 3 days a week for approximately 9 months. The worker attempted to increase their hours to 4 days a week however reported increasing pain.

The worker’s employment was terminated in March 2012. They worker has not returned to work to date.

The treating specialist reviewed the worker in February 2012 and reported that the worker continued to have symptoms with mid-range flexion which was exacerbated by the worker’s workplace situation where they had to ascend and descend stairs carrying heavy loads. The treating specialist notes in their report that the worker continued to have symptoms and signs consistent with full thickness lateral trochlear and partially central trochlear chondropathy. The treating specialist concludes that the worker should “have permanent avoidance of loaded knee flexion with carrying of heavy loads” and consider further surgery if his symptoms continue to be troublesome.

The worker was reviewed by an injury management consultant in March 2012. In the report of the same date, the injury management consultant noted that the worker had ongoing left knee pain particularly with negotiating stairs and squatting. The injury management consultant opines that the worker can undertake “normal pre-injury hours” and that the worker was “fit for suitable duties” with the following restrictions:

“No kneeling”

“No squatting”

“To avoid negotiating stairs”

“If [the worker] does have to drive more than one hour [they] could then drive for an hour then pull over to the side of the road, have a rest period and then continue driving”

In an addendum to the report, the injury management consultant refers to a report from a specialist in which it was stated that the worker was not fit for his pre-injury duties at that time but was “fit for suitable duties avoiding squatting, crouching etc”. The injury management consultant states:

“I would suggest at this stage it would be reasonable to upgrade [the worker] to full time suitable duties and, after 3-4 weeks, [the worker] should be able to undertake a trial of pre-injury duties.”

Another specialist reviewed the worker in August 2013. In a report dated  August 2013, the specialist reports that the worker had full range of movement when examined on a bed but had very limited ability to squat when the joint was loaded. In response to some questions from the Insurer, the specialist states that they do not believe that the worker can return to their pre-injury role as they are unable to go up and down ladders and stairs.

The specialist states that the worker does however have the capacity to work full-time hours with restrictions, noted as: “...driving 1 hour, sitting was okay as long as he could change positions as required, standing and walking 20 minutes without a break. [the worker] should avoid ladders and minimal stair climbing”. The specialist notes that the worker also experienced pain in his right knee which was attributed to his left knee problems and gave a history of back pain and numbness in his right leg.

The treating doctor has issued the WorkCover NSW medical certificates / certificates of capacity before me. The certificates date back to February 2013 and all certify the worker with the capacity to work “full time” with restrictions.  The worker’s restrictions have remained relatively consistent however I note that the restriction in relation to squatting changed from “avoid repetitive squatting” to “Not [emphasis retained] to squat” in the certificate dated  April 2015. In the most recent certificate of capacity dated  July 2015, the treating doctor outlines these restrictions as “permanent modified duties. Light work. Can sit. May need to sit intermittently...not to SQUAT [emphasis retained]. [Driving ability] Ok but may need to limit distance”.

Considering the above information, I note that the worker was unable to increase their hours of work in their pre-injury employment which reportedly required them to ascend and descend stairs carrying heavy loads. The medical opinions above do however indicate that the worker has the capacity to work full-time in work that is within particular functional restrictions. I consider the opinions in respect to the worker’s functional restrictions to be relatively consistent. Accordingly, I am satisfied that the worker has capacity for some type of employment in accordance with the treating doctor’s current certificate of capacity and that the worker should in addition avoid work that requires significant ascending and descending of stairs, as indicated by a number of the above opinions.

In order to determine whether the worker has an entitlement to weekly payments of compensation I am required to determine whether he has current work capacity.

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’s pre-injury employment was as a water treatment technician. I note that the injury management consultant indicated in early 2012 that the worker could undertake a trial of their pre-injury duties. The injury management consultant did however also opine that the worker should avoid negotiating stairs which the information before me indicates was a requirement of the worker’s pre-injury employment. In light of this inconsistency and the opinions of the specialists who indicated that the worker was unable to return to this role as well as the treating doctor who has not certified that the worker is able to return to pre-injury employment, I find 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 order to determine whether the worker has current work capacity, I am required to consider whether they are 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 worker has completed his high school education at Year 10 and has since obtained certificates/undergone training. The worker’s employment history consists of roles as a Trades Assistant and Labourer, Process Worker, Electric Repairer, Equipment Maintenance Repair and their pre-injury role as a Water Treatment Technician.

Further to a work trial undertaken in 2012, the worker has not returned to work to date.

I have two vocational assessments before me, prepared by two occupational rehabilitation providers dated  May 2012 and  August 2013 respectively.

The earlier report identified the roles of Receiving and Dispatch Clerk, Assembly Worker and Process/Production Worker as suitable vocational options for the worker. Upon review of the information provided in respect of these roles however, I am not satisfied that either of these roles are suitable employment for the worker having regard to the above factors under section 32A of the 1987 Act.

I note that both the roles of Assembly Worker and Process/Production Worker are reportedly classified as having a ‘medium’ level of physical demand. In Appendix 1 to the occupational rehabilitation provider’s report, ‘medium work’ is defined as follows:

“Exerting 9 kilograms to 23 kilograms of force occasionally, or 4.5 kilograms to 11 kilograms of force frequently, or greater then negligible up to 4.5 kilograms of force constantly to move objects. Physical demand requirements are in excess of those for Light Work.”

The physical requirements of these roles are therefore outside of the worker’s restriction of “light work”.

The vocational option of Receiving and Dispatch Clerk reportedly has a ‘sedentary’ level of physical demand. There is however very little further information provided to allow an assessment to be made as to whether the worker would be able to work within their current restrictions. The duties that may be required of the role, reportedly include “identifies articles or containers of incoming and outgoing shipments...”, “ensures outgoing shipments are in good condition and meet specifications”, “may count, weight or measure items” and “may affix shipping labels and instructions”. Employers contacted as part of the assessment indicated that positions in this role would require stocktake/general stock control, receiving and dispatching stock, and picking and packing orders. Based on the information before me, it appears that the worker may be required to squat to undertake particular duties. The worker’s restrictions currently include “Not to squat”. I am therefore not satisfied that work as a Receiving and Dispatch Clerk is suited to the nature of the worker’s incapacity.

The later vocational assessment identifies the roles of Assembly Worker, Quality Assurance Officer and Electric Repairs (Small Appliances) as suitable vocational options for the worker. Upon review of the information provided in respect of these roles however, I am also not satisfied that either of these roles are suitable employment for the worker having regard to the above factors under section 32A of the 1987 Act.

Similarly to above, the role of Assembly Worker reportedly has a ‘medium’ physical demand level and a physical demand of the position is reported as including “occasionally squats, crouches or kneels for some assembly tasks”. The role of Electric Repairer reportedly has a ‘light to medium’ physical demand and a physical demand of the position includes “bending, squatting, crouching, or kneeling, will be required occasionally”. I note that a specialist indicated their approval for the worker to work in these roles in his report dated  August 2013 as did the treating doctor in a return facsimile to the occupational rehabilitation provider dated  February 2015 however these approvals were provided prior to April 2015, when the worker’s certified restrictions changed from “avoid repetitive squatting” to “not to squat”. In light of the worker’s current restrictions of “light work” and “not to squat”, I am not satisfied that work as a Receiving and Dispatch Clerk is suited to the nature of the worker’s incapacity.

In respect to the option of Quality Assurance Officer, while the physical demands of the role are classified as ‘sedentary’ and squatting is “unlikely to be required”, it does not appear on the information currently before me that it is employment in work that is suited to the worker’s education, skills and work experience. The role may reportedly involve the following duties:

  • Identifies and develops objectives, strategies and plans to achieve customer satisfaction and maximise efficient use of an organisation’s resources, including identifying potential improvements to systems, processes and work flows.
  • Identifies formal standards and regulatory codes appropriate to an organisation’s needs and assists with the documentation of processes and operating procedures.
  • Implements statistical methodologies and quality tools to monitor and control quality to satisfy internal and external customer requirements.

The worker does not have any experience in quality assurance roles and their employment history has been in roles of a more physical/labour nature, evident in the list of duties undertaken in the roles provided in Accuracy’s report. I acknowledge that the worker may have gained some relevant experience and skills over the years, however I am not satisfied that they currently have the skills required to undertake the above duties.

For the above reasons, I am not satisfied that either of the above roles constitute suitable employment for the worker in accordance with the definition provided in section 32A of the 1987 Act.

As I have found that  the worker has a present inability arising from an injury such that they are not able to return to work, either in his pre-injury employment or in suitable employment, it follows that the worker has no current work capacity, pursuant to 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  July 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 of compensation immediately before the commencement of the weekly payments amendments and I find that he 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:

a. Weekly payments in the first 13 weeks are to be determined in accordance with section 36 of the 1987 Act (“the first entitlement period”)

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

c. 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 to the application for merit review that the worker had received 211 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 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 to 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 as there is information to support that the worker 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 which provides as follows:

(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

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 above mentioned 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 entitled to weekly payments of compensation in the amount of $788.32 per week.