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Findings and recommendations on merit review 004/15

Merit Review Service decision reference: 005/15

Date of review: November 2015

Findings on review

The following are findings made by the WorkCover Authority of New South Wales (the Authority) on review.

  • The worker has a present inability arising from an injury such that they are not able to return to their pre-injury employment but is able to return to suitable employment as a windscreen fitter.
  • The worker has current work capacity.
  • The worker is able to earn $932.00 per week in suitable employment as a windscreen fitter.
  • The worker’s pre-injury average weekly earnings are equal to the transitional amount. That amount is currently $985.40.
  • The worker is in the second entitlement period and is entitled to weekly payments of compensation under section 37 of the Workers Compensation Act 1987 (the 1987 Act).

Recommendations based on findings

The following recommendations made by the Authority are binding on the Insurer and must be given effect to by the Insurer under section 44(3)(g) of the 1987 Act.

  • When the worker is entitled to weekly payments of compensation under section 37(2) of the 1987 Act, it is to be at a maximum rate of $4.13.
  • When the worker is entitled to weekly payments of compensation under section 37(3) of the 1987 Act, it is to be at a maximum rate of $0.00.

Background

The worker has been receiving weekly payments of compensation for an incapacity for work resulting from an injury to their right shoulder.

In April 2015, the Insurer made a work capacity decision to reduce the amount of the worker’s weekly payments of compensation to a maximum of $4.13 on the basis that they were able to earn $932 per week in suitable employment as a windscreen fitter.

In May 2015, the worker referred that decision for internal review by the Insurer. The Insurer posted the worker notice of their internal review decision in May 2015 which again reduced the amount of their weekly payments of compensation to a maximum of $4.13.

The application for merit review was received by the Authority in June 2015. I am satisfied the application has been made in the approved form and within time under section 44(3)(a) of the 1987 Act.

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)
  • 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 for this review are the application for merit review form 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

In the application for merit review, the worker submits:

  • Windscreen fitter, truck driver, and forklift driver are not suitable employment due to their restrictions.
  • Two companies have told them they would not employ them because their restrictions prevent them from performing the job. The current casual employer makes allowances for their injury and restrictions and would not employ them on a full-time basis.
  • They have applied for jobs as a truck and forklift driver but their 12.5kg lifting restriction makes them unemployable in those jobs.
  • It is not appropriate to reduce their weekly payments of compensation to $4.13 as they do not have the capacity to earn the pre-injury wages.
  • Their weekly payments of compensation should be paid as a top-up payment week by week based on what they earn.

In reply, the Insurer submits:

  • The worker has a present inability arising from an injury such that they are unable to return to their pre-injury employment as a process worker.
  • Twice previously, the worker has had the Insurer’s work capacity decisions overturned on internal review.
  • At the time of the internal review, the worker was certified as “fit for suitable duties but not pre-injury duties” for 8 hours a day, 5 days a week with restrictions.
  • The worker is currently in suitable employment as a windscreen repairer. Employment as a truck driver or forklift driver is also suitable employment for them.
  • The worker has received 101 weeks of weekly payments of compensation so section 37 of the 1987 Act applies.
  • Based on their current hourly rate of pay, the worker is able to earn $932.00 per week in suitable employment ($23.32 x 40 hours = $932.00).
  • The worker is entitled to a maximum of $4.13 in weekly payments of compensation under section 37(2) of the 1987 Act.

Reasons

Nature of merit review

This matter involves a merit review of the work capacity decision of the Insurer under section 44(1)(b) of the 1987 Act. The review is not a review of the Insurer’s procedures in making the work capacity decision and/or internal review decision. The review requires that I consider all of the information before me substantively on its merits and make findings and recommendations that, in light of the information before me, are most correct and preferable.

Current work capacity and suitable employment

The worker has an injured right shoulder. That shoulder has been operated on 3 times by the treating specialist. The worker has stated that they have developed left shoulder problems because they “began to change the way I approached my work and indeed my life at large to take pressure off the right shoulder” (paragraph [12] of signed statement from February 2015). They have also stated that they are in casual employment “with which I cope” (paragraph [8] of signed statement from February 2015). Consistent with that, I have pay slips before me from the current employer from December 2014 to July 2015 that support the worker’s current employment as a level 3 windscreen fitter.  So on the face of it, the worker has capacity to work.

The expert medical opinions before me also support that the worker has capacity to work. There is some quite dated medical and related information before me which has been useful in understanding the background to the worker’s present circumstances. However, I have limited my discussion below to the more recent medical information that I consider is relevant to reviewing if, and to what extent, the worker has “current work capacity” as defined by section 32A of the 1987 Act.

In May 2013, the worker had an independent medical examination with an orthopaedic surgeon. The worker was diagnosed with “residual pain and stiffness following two separate operations in the form of rotator cuff repair”. The orthopaedic surgeon considered: “I agree with the worker’s current capacity of doing full pre-injury hours driving forklifts and being exempted from overhead reaching and overhead lifting like pushing carcasses on overhead rails”. They continued: “[The worker] has the functional capacity to work as a forklift driver which they are doing now in full hours and they could drive a truck and do a plant operator’s job as well with restrictions on overhead lifting and overhead reaching using each arm”.

The treating specialist performed the third surgery on the worker’s right shoulder in June 2013. The surgery was an open biceps tenodesis.

In a report from February 2014, the treating specialist stated that “Unfortunately I feel that [the worker] will be left with a painful right shoulder with a resultant functional limitation”. They continued: “I would recommend a permanent lifting restriction of 12.5kg with below shoulder height level lifting and no repetitive or heavy above shoulder height level lifting”.

In August 2014, the worker had an independent medical examination with an orthopaedic surgeon. Relevant to the issue of work capacity, this orthopaedic surgeon stated:

"The worker has managed to find a job as a windscreen fitter and they are coping reasonably well with this, although at times the worker has to struggle if they have to put their arm up near shoulder height. The worker is casually employed, but they are coping quite well and their boss seems to be pleased with their work activities."

The orthopaedic surgeon assessed that the worker had 15% whole person impairment.

In November 2014, the worker had an independent medical examination with another orthopaedic surgeon who did not specifically address the worker’s work capacity. However, they noted that the worker had “a torn right subscapularis muscle component of the rotator cuff” and assessed 7% whole person impairment.

Since May 2014, the treating doctor has issued WorkCover NSW certificates of capacity diagnosing the worker’s work-related injury as “right shoulder injury and instability, left shoulder pain and limited [range of motion]” and certifying that the worker has capacity for some type of employment for 8 hours a day, 5 days a week with a lifting/carrying capacity of 12.5kg and “no mash apron, avoid repetitive movement both arms (as per [the treating specialist’s] report)”. The treating doctor then comments: “[The worker] has reached maximum medical improvement. They will be fit for [permanent] suitable duties [maximum] weight 12.5kg below shoulder height level. No repetitive or heavy lifting [above] shoulder height level”. That certification is still in place, covering the period to September 2015.

I acknowledge that the worker has ongoing problems with their shoulders that limit their level of function. However, the weight of the above information supports that the worker still has some capacity for work with restrictions.

I acknowledge the worker’s submission that “my current casual employer makes allowances for my [injuries] and restrictions, and that[’]s why they wouldn’t employ me at a full time capacity”. However, I do not consider that submission is supported by the pay slips before me. Pay slips for the worker from December 2014 to January 2015 support that the worker has been able to do 40 hours or more of work per week as a windscreen fitter. In line with the treating doctor’s certificates of capacity and the treating specialist’s report from February 2014, I find that the worker has a present inability arising from their injury such that they are able to return to work for 8 hours a day, 5 days a week with a lifting/carrying capacity of 12.5kg below shoulder height level, no repetitive or heavy above shoulder height level lifting, no mash apron, and avoid repetitive movement with both arms.

Section 32A of the 1987 Act defines “current work capacity” 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

In a report from May 2013, an orthopaedic surgeon stated that the worker “remains unfit for [certain pre-injury duties] and they are unlikely to return to that in the foreseeable future and therefore a permanent restriction certificate of overhead reaching and overhead lifting using each shoulder is a reasonable option”. Further, the worker is currently certified with restrictions on overhead work and the treating doctor does not certify them “fit for pre-injury duties”. I am satisfied, that the worker has a present inability arising from an injury such that they are not able to return to their pre-injury employment. To determine if the worker has current work capacity, I must consider if the worker is able to return to work in “suitable employment”. Suitable employment is defined in section 32A of the 1987 Act:

suitable employment, in relation to a worker, means 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 is currently employed as a level 3 windscreen fitter. An occupational therapist did a worksite assessment for this employment in August 2014 and reported that the duties of this role were:

  • replace laminated windscreens
  • remove moulds and trims from around damaged glass
  • remove damaged windscreens and side and rear glass, and replace these according to the vehicle manufacturer’s specifications
  • install pre-cut glass into vehicles using rubber or neoprene moulds
  • driving/travelling.

The weight of information before me supports that the worker’s work as a windscreen fitter is suited to the nature of their incapacity. In the workplace assessment report from August 2014, the occupational therapist assessed that the “results of the Workplace Assessment indicate that the worker is presently functionally capable of meeting the inherent physical demands with the Windscreen Repairer role”. In signed correspondence from February 2014, the treating doctor indicated that this type of employment was suitable for the worker on a full time basis, 38–40 hours per week. In their report from August 2014, an orthopaedic surgeon reported that the worker had to “struggle if they have to put their arm up near shoulder height” but “the worker is coping well” in their casual employment as a windscreen fitter. In a signed statement from February 2015, the worker stated at [8]: “I am doing casual work at the moment with which I cope”. Indeed, the worker’s demonstrated ability to do the work for almost a year also supports that it is work that is suited to the nature of their incapacity.

Having worked in the role for almost a year, the worker has had the benefit of direct practical education, skills and work experience for this employment. The worker does not appear to require further occupational rehabilitation services for this type of employment on the information before me. In a report from August 2014, an orthopaedic surgeon stated that “the worker’s boss seems to be pleased with their work activities”. I consider those comments are consistent with the fact that the worker continues to be employed, which indicates that they have a suitable level of education, skill and work experience for this employment.

Having regard to the relevant matters listed in the definition of “suitable employment” above, I am satisfied that the worker’s current employment is employment in work for which the worker is currently suited.

The worker submits that their current employer “makes allowances for my [injuries] and restrictions” and that other employers of windscreen fitters would not be able to accommodate them in the same way. I acknowledge that in the employment market for windscreen fitters there may be some jobs that are physically suitable for the worker and that some may not be. However, in my view, the worker’s work with the current employer supports that there is suitable employment in the employment market as a windscreen fitter that the worker is able to return to work in.

I find that the worker has a present inability arising from an injury such that they are not able to return to work in their pre-injury employment but is able to return to work in suitable employment.

I find that the worker has “current work capacity” as defined by section 32A of the 1987 Act.

A Vocational Assessment provided by an occupational rehabilitation provider in December 2014 also found that employment as a truck driver and forklift driver was suitable for the worker.

The worker submits that they have applied for jobs as a truck driver and forklift driver but their 12.5kg lifting restriction “makes me unemployable in these fields”.

The occupational rehabilitation provider’s report states that truck driving is “typically a light to medium physical demand job” but “occasionally the role involves heavy physical demand (depending on the requirement for strapping down and loading)”. The terms “light”, “medium”, and “heavy” are not defined. Without further information, I am not satisfied that such employment is suitable for the worker given their lifting/carrying capacity is 12.5kg. Also, the job reportedly involves “frequent repetitive hand, arm...movement are required for the operation of truck controls”. That is inconsistent with the worker’s restriction to avoid repetitive movements with both of their arms.

I acknowledge that the occupational rehabilitation provider contacted some employers about specific truck driving jobs in the employment market. However, the specific companies and persons contacted are unnamed. There is only a second-hand account from the occupational rehabilitation provider about what information was given by the employer. Sometimes the information is inconsistent. For example, one employer apparently reported “Drivers are responsible for the secure and safe loading of vehicles, load and unload vehicles at their destinations...” but then later “the employer confirmed there is no manual loading or unloading”. Other times, the information is incomplete, for example, a different employer apparently reported “The role does entail some loading and unloading of trucks via forklift however the majority of the time the supermarket back dock staff will undertake this”. That does not actually indicate how much, in what manner, and how often an employee is required to lift or carry. Those are the types of issues that in my view need to be directly addressed given the nature of the worker’s incapacity. In light of these issues, I do not give the labour market contacts much weight.  Rather, I consider the general job description on page 9 of the occupational rehabilitation provider’s report holds more weight about the physical requirements of a truck driver role in the employment market.

Also, the worker has no work experience as a truck driver. That puts further doubt in my mind as to whether employment as a truck driver is employment in work for which the worker is currently suited.

I am not satisfied on the information before me that employment as a truck driver is employment in work for which the worker is currently suited having regard to the nature of their incapacity and their lack of work experience.

The occupational rehabilitation provider’s “generic functional demands” for forklift driver role indicate that the role requires “frequent repetitive hand, arm and...pushing/pulling – required for operation of controls”. The nature of the worker’s incapacity is such that they should avoid repetitive movement with both arms. I am not satisfied that employment as a forklift driver is employment in work for which the worker is currently suited having regard to the nature of their incapacity.

It may be that further information will come to light about the worker’s suitability for employment as a truck driver or forklift driver, particularly if the worker is able to get some work experience in those roles. However, on the information currently before me, I am not satisfied that either role is “suitable employment” as defined by 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’s reply form dated July 2015 indicates that the worker was in receipt of weekly payments of compensation immediately before 1 October 2012. Without information to the contrary, I accept that was the case. So, the worker is an existing recipient of weekly payments as they were in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments on 1 October 2012.

Entitlement periods for ongoing weekly payments

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 determined under section 36 of the 1987 Act (“the first entitlement period”)

b. Weekly payments in weeks 14–130 are determined under section 37 of the 1987 Act (“the second entitlement period”)

c. Weekly payments after the second entitlement period (after week 130) are determined under subsections 38(6) or (7), but only if the special requirements for continuation of weekly payments after the second entitlement period are met under section 38 of the 1987 Act.

The Insurer’s reply form dated July 2015 states that 101 weeks of weekly payments of compensation have been made to the worker. Without information to the contrary, I accept that 14–130 weeks of weekly payments of compensation have been paid or were payable to the worker.

I find that the worker’s entitlement to weekly payments of compensation falls in the second entitlement period and must be calculated under section 37 of the 1987 Act.

The worker is currently in casual employment and their hours of work vary week to week. In the weeks that the worker works at least 15 hours per week, the Insurer must apply section 37(2) of the 1987 Act. In weeks where the worker works less than 15 hours per week, the Insurer must apply section 37(3) of the 1987 Act:

(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:

(a) (AWE × 95%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.

(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:

(a) (AWE × 80%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.

Factors to determine rate of weekly payments

“AWE” means the worker’s pre-injury average weekly earnings. Clause 9, Part 19H, Schedule 6 of the 1987 Act states the following about an existing recipient of weekly payments’ “AWE”:

(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.

So, the transitional amount applies for the worker’s “AWE”. The transitional amount is currently $985.40.

“E” is described in section 35 of the 1987 Act as:

E means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:

(a)  the amount the worker is able to earn in suitable employment,
(b)  the workers current weekly earnings.

“D” is the value of all “non-pecuniary benefits” as defined by section 44F of the 1987 Act.  I am satisfied that in this case the value is $0.00.

Ability to earn in suitable employment

I have found that employment as a windscreen fitter is suitable employment for the worker. The worker’s pay slips from the current employment reveal that they are paid a base hourly rate of $23.30. I acknowledge that the occupational rehabilitation provider’s Vocational Assessment dated December 2014 gives alternate hourly rates of pay for windscreen fitters in the employment market. However, I consider that the current rate of pay that the worker has secured as a windscreen fitter in the employment market is the best reflection of the amount they are able to earn in suitable employment.

I have found that the worker is able to work 8 hours a day, 5 days a week. Multiplying $23.30 by 40 hours gives $932 ($23.30 x 40 = $932) as the amount the worker is able to earn in suitable employment.

Again, I acknowledge the worker’s submission that “my current casual employer makes allowances for my [injuries] and restrictions, and that[’]s why they wouldn’t employ me at a full time capacity”. However, I do not consider that submission is supported by the pay slips before me. As I stated earlier, the pay slips support that there have been times when the worker has worked at least 40 hours per week as a windscreen fitter.

I acknowledge that the worker is a casual employee and that 40 hours of work may not be available to them each week. However, that is not a factor I am able to have regard to in assessing the amount the worker is able to earn in suitable employment as “suitable employment” is defined in section 32A of the 1987 Act as “employment in work for which the worker is currently suited...(b) regardless of (i) whether the work or the employment is available”.

I find $932.00 per week to be the amount the worker is able to earn in suitable employment as a windscreen fitter.

Current weekly earnings

Current weekly earnings are defined in section 44I of the 1987 Act as follows:

In this Act, current weekly earnings of a worker in relation to a week means:

(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 the ordinary hours worked during that week,
(ii) Amounts paid or payable for overtime or shift allowances in respect of that week,
(iii) Amounts paid or payable as piece rates or commissions in respect of that week, or

(b) In any other case, the worker’s actual earnings in respect of that week but not including any amount that is a base rate of pay exclusion unless it is:

(i) Paid or payable for overtime or shift allowances in respect of that week, or
(ii) Paid or payable as piece rates or commissions in respect of that week.

As the worker is in casual employment their current weekly earnings vary each week. So, I make no finding on the amount of the worker’s current weekly earnings. The Insurer must calculate the value of the worker’s current weekly earnings for each week that the worker is entitled to weekly payments of compensation and increase the value of “E” in any week that the worker’s current weekly earnings are greater than $932.00.

I acknowledge the worker’s submission that their weekly payments of compensation should be a “top-up” on what they earn. However, the definition of “E” in section 35(1) of the 1987 Act makes clear that the “greater amount” of (a) the amount the worker is able to earn in suitable employment and (b) the worker’s current weekly earnings must be used for “E”.  So, “E” must be at least $932.00 being the amount the worker is able to earn in suitable employment.

Calculation of entitlement

Under section 37(2) of the 1987 Act, the worker is entitled to weekly payments of compensation to a maximum rate of:

(AWE x 95%) – (E + D)
= ($985.40 x 95%) – ($932.00 + $0.00)
= $936.13 – $932.00
= $4.13

Under section 37(3) of the 1987 Act, the worker is entitled to weekly payments of compensation to a maximum rate of:

(AWE x 80%) – (E + D)
= ($985.40 x 80%) – ($932.00 + $0.00)
= $788.32 – $932.00
= $0.00

Merit Review Service
Delegate of the WorkCover Authority of NSW