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Findings and recommendations on merit review 005/15

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 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 the worker is 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 satisfies the special requirements for continuation of weekly payments of compensation after the second entitlement period pursuant to section 38 of the Workers Compensation Act (the 1987 Act).
  • The worker is an existing recipient of weekly payments.
  • The worker’s deemed pre-injury average weekly earnings are $985.40.

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 Workers Compensation Act 1987 (the 1987 Act).

  • In accordance with section 38(6) of the 1987 Act, the worker’s entitlement to weekly payments of compensation is $788.32.

Background

The worker sustained an injury to the worker’s back whilst working at the pre-injury employer as a Truck Driver. The date of injury referred to in the material before me is the date of injury. The worker is not currently working and has been in receipt of weekly payments from the Insurer.

In light of amendments introduced by the Workers Compensation Legislation Amendment Act 2012, the Insurer conducted a work capacity assessment and made a work capacity decision in July 2013, reducing the worker’s weekly payments to nil. In November 2013 an internal review decision was made that maintained the work capacity decision of the Insurer.

The work capacity decision of the Insurer was then the subject of a merit review by the Authority in May 2014. The delegate of the Authority found that the worker had no current work capacity and was entitled to weekly payments of compensation in the amount of $768.40 per week.

The Insurer conducted a further work capacity assessment on April 2015. The Insurer then made a further work capacity decision, and notified the worker by way of letter dated April 2015 that the worker’s entitlement to weekly payments of compensation was to be ceased. The worker made an application for internal review by the Insurer on May 2015. The Insurer undertook an internal review in this matter dated June 2015.

The worker lodged an application for merit review by the Authority in June 2015. The worker’s application for merit review has been made within 30 days and has been made in the form approved 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.

Submissions

The worker submits:

  • That the worker cannot find work as a Tipper Driver on the hours that the worker is restricted to (6 hours 5 days per week).
  • The decision of the Insurer was made by a person unknown and they have the date of injury wrong. The worker was injured on the date of injury.
  • With all the restrictions on the worker’s medical certificate, it is hard to be re-employed.
  • The decision should be changed because the worker’s work capacity has not changed from the worker’s last assessment, which was overturned by the WIRO as the worker is unable to find employment because of the injury and medical restrictions in the doctor’s certificate.
  • The worker has to use a tens machine on the worker’s back to get through the day and needs long breaks as the worker cannot walk too far.
  • The worker asked to be retrained as a driver instructor to which the doctor said yes, and there have been jobs on the computer, but the Insurance company retrained the worker as a security guard with which the worker has no experience.
  • The worker has been applying for jobs without getting one and does not get any help from Centrelink.
  • The decision should be cancelled and the worker’s “wages” re-instated as to which the worker finds employment or is retrained in a field that the worker has experience in.
  • The decision will put the worker and the worker’s family into poverty because of an injury that was not the worker’s fault.
  • The worker and the worker’s family are living in hardship now.
  • The Insurer has not considered that there are no jobs for Tipper Truck Drivers 6 hours a day, 5 days a week.

In reply, the Insurer submits:

  • On the date of injury the worker sustained an injury to the worker’s back whilst working as a Truck Driver for the pre-injury employer, preventing the worker from returning to the worker’s pre injury employment.
  • The worker is unable to return to the worker’s pre injury employment.
  • The worker has consistently been certified as having capacity for some type of employment with restrictions as set out in the worker’s certificates of capacity.
  • The most recent Certificate of Capacity dated April 2015 certifies the worker as having capacity for employment 6 hours per day, 5 days per week, with restrictions as set out in the certificate.
  • The Insurer relies on the internal review decision dated June 2015 and submits that the worker has the necessary functional and vocational ability to undertake employment as a Tipper Truck Driver. The role of a Tipper Truck Driver is suitable employment as argued in the internal review decision.
  • The worker has received 307 weeks of weekly payments of compensation. Accordingly, 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 $173 per week. Accordingly, the worker does not satisfy the special requirements of section 38(3)(b) of the 1987 Act.
  • Accordingly, the worker’s entitlement to weekly payments of compensation is discontinued in accordance with the work capacity decision dated 21 April 2015.

Documents considered

The documents I have considered are those listed in, and attached to, the application and the Insurer’s reply, including the submissions made by both parties.

On 8 July 2014, by way of email, the worker provided to the Authority and the Insurer the following:

  • Letter of Centrelink addressed to the worker dated May 2014.
  • Insurer job seekers diaries and list of jobs applied for by the worker.

Reasons

Nature of merit review and Jurisdiction

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 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.

I note that the worker has raised a number of issues concerning the procedures of the insurer in making the work capacity decision. These include submissions such as that the decision of the Insurer was made by an “unknown person” and the Insurer made an incorrect reference to the date of the worker’s injury in the decision it made.

However, this is a merit review of the work capacity decision of the Insurer, which requires me to consider all the material before me as if the original decision had not been made. It is not a review of any error in the Insurer’s decision, or a review of the procedures of the Insurer. Accordingly, the matters raised by the worker as referred to above, are outside of the scope of this review.

Current work capacity and suitable employment

The worker injured the worker’s back on the date of injury whilst working as a Truck Driver for the pre-injury employer. The worker was pulling a relatively heavy, large waste bin filled with paper when the worker became aware of a severe pain in the worker’s lower back radiating down the worker’s right leg. After a period of rest, the worker continued working for the remainder of the worker’s shift. The worker consulted the company doctor at the completion of the worker’s shift at which point the worker was certified fit for light duties for approximately one month.

The worker then is reported to have worked for three weeks on pre-injury duties before resigning from the worker’s role. The worker then found work as a casual Truck Driver with an employer but ceased this work after a period of three weeks as the worker began to experience severe pain in the worker’s back which prevented the worker from entering and exiting the truck. The worker subsequently consulted a specialist and was certified as unfit for work.

The worker was then referred for occupational rehabilitation services with an occupational rehabilitation provider. The rehabilitation provider contacted an employer in August 2012 to canvass a position on the worker’s behalf. The employer then agreed to employ the worker under the WorkCover Job Placement Program as a Tipper Truck Driver.  The worker maintained this employment until February 2014 when the worker ceased employment for non-related carpal tunnel surgery.

Since this time, the worker has not returned to paid employment.

At this point I note that due to the age of this claim and the date of the worker’s injury, there is dated medical information before me. Whilst this has been useful in coming to an understanding of the nature of the worker’s injury, as this is an assessment of the worker’s current work capacity (emphasis added) I have referred only to that medical and other information I consider to be of utility in assessing the worker’s current work capacity.

In a report dated July 2014, an injury management consultant reports that the worker continued to complain of lower back pain that is felt in the right leg and also into the right foot. The injury management consultant considered the worker fit for suitable duties with a lifting restriction of 10 kilograms. In general, the worker should change position every 30 minutes to avoid static postures. The worker should work at waist height and above to avoid repeated bending. The injury management consultant considered the worker fit to drive but should take breaks every 30-60 minutes to avoid static sitting. The injury management consultant could “not see any significant difference between the worker working 6 hours and the worker working 8 hours, provided regular stretches and breaks are given”.

For a significant period of time, and since at least October 2013, the worker’s capacity for employment, in the opinion of the worker’s treating doctor, has remained at 6 hours a day, 5 days a week, with restrictions.

In the most recent WorkCover – Certificate of Capacity before dated July 2015, which has been issued for the period July 2015 to October 2015, the worker has been assessed by the treating doctor as having capacity for employment 6 hours a day, 5 days a week, with restrictions of a lifting/carrying capacity of 14 kilograms, sitting of up to 30 minutes, standing up to 15 minutes, no pushing, pulling or repetitive bending and driving up to 40 minutes at a time.

In a brief referral document dated April 2015, the treating doctor states that the worker “has had chronic work related back pain which is affecting the worker’s ability to return to full-time work- needs further opinion and management”. It is noted that the worker has continued to be prescribed pain medication for the worker’s back pain.

The medical information supports that the worker continues to suffer from chronic back pain that impacts upon the worker’s capacity for employment. The injury management consultant’s opinion is that the worker is able to undertake full time hours of employment. On that issue, I prefer the opinion of the treating doctor as the treating doctor is in a good position to understand the nature of the worker’s current capacity for employment.  The opinion of the injury management consultant is based upon a “file review” and not based upon continued treatment and examination of the worker. Further, the opinion of the treating doctor is the most recent medical opinion before me.

I therefore find that the worker has the capacity to undertake some type of employment as certified by the treating doctor, 6 hours a day, 5 days a week, with restrictions of a lifting/carrying capacity of 14 kilograms, sitting of up to 30 minutes, standing up to 15 minutes, no pushing, pulling or repetitive bending and driving up to 40 minutes at a time.

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 the worker’s pre-injury employment but is able to return to work in suitable employment

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.

I find that the worker is not able to return to the worker’s pre-injury employment as a Truck Driver.  This role included lifting heavy, large waste bins of paper that exceeds my finding of the worker’ functional lifting capacity. I find that the worker is not able to return to the worker’s pre-injury employment.

In order to determine whether the worker has current work capacity, I am required to consider whether the worker is 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 met, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.

In a Vocational Assessment Report of an occupational rehabilitation provider dated June 2014, the role of “Short Haul Truck Driver/Tipper Truck Driver” ANZSCO Code 7331-11, has been identified as suitable employment for the worker.

In an annexure to the report, the tasks of a “truck driver” are described as including driving defensively and handling hazardous road conditions, loading goods on to the truck either by hand, or by using a forklift or other lifting equipment, making sure loads are correctly placed and secured with ropes and chains to avoid damage to the truck or the goods, coupling and uncoupling trailers, performing vehicle and security inspections, carrying out vehicle maintenance, driving vehicles to destinations and unloading, carrying our administrative duties and maintaining a log book.

I note that a number of employers in the labour market were contacted in relation to the role of a Tipper Truck Driver. The key duties described by employers of Tipper Truck Drivers included delivering and unloading trucks and liaising with customers. Skills required for this role were variously described by employers as an MR/HR licence, customer service skills and communication skills, and some employers stated that a forklift licence would be helpful.

With respect to the physical requirements of the role in light of the worker’s functional tolerances, employers variously advised that “most work is local, occasionally have to drive longer, but have 10 drivers so longer work could be given to other workers. 40 minute driving restriction would not be a problem to accommodate from an employment perspective”. Another employer advised “occasionally may have to unload truck. Yard Hands also assist with loads”. Another employer advised “occasional lift 20 kilograms but have yard people who can do the lifting if required...manual unloading of stock is not done. The 20 kg relates to the occasional need to move plant and equipment but as outlined this is done by yard staff not drivers. 40 minutes driving restriction is not a problem as the worker can do all the local deliveries, whilst others do the further distances”. Another employer advised “40 minutes OK as can do the local deliveries”. Another advised “40 minutes ok as most customers are within that distance”.

I am required to consider whether the employment identified by the Insurer is suitable employment for the worker having regard to “the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker”. Whilst I note that the worker undertook the role of a Tipper Truck Driver after the worker sustained the workplace injury for extended period of time as part of a WorkCover Job Placement Program, I must nevertheless consider in this review, whether on the information that is now before me, the role identified by the Insurer is suitable employment for the worker from a functional perspective.

By way of background, it is important to note that the worker sustained the workplace injury in undertaking a lifting task involved in the worker’s pre injury employment as a Truck Driver, which included lifting a heavy waste bin. Further, it is reported that after the worker sustained the injury, the worker subsequently found work as a casual truck driver, but then ceased this work after a period of three weeks as he began to experience severe pain in the worker’s back which prevented the worker from entering and exiting the truck. The worker subsequently consulted a specialist and was certified as unfit for work.

I also note however, that the Insurer has identified the particular role of a “Short Haul Truck Driver/Tipper Truck Driver” as suitable employment for the worker. Nevertheless, it is apparent from the vocational assessment information provided, including information provided by employer contacts in relation to that role, that lifting remains a task required to be performed in the role of a Tipper Truck Driver. I also note that information has been provided by various employers that assistance is able to be provided in performing this function.

The worker’s driving restriction of 40 minutes appears to be a problematic restriction in the context of a job that fundamentally involves driving for periods of a time. Whilst I note that employers of “Tipper Truck Drivers” have variously advised that this restriction could be accommodated in that longer driving jobs could be given to other workers, or that the worker could “perform the local deliveries”, I am required to assess if Tipper Truck Driver is employment in work for which the worker is currently suited having regard to, among other things, the nature of the worker’s incapacity.

The fact that the worker would be able to perform the physical tasks and functions of the role with the assistance of other employees or in the employment of a particularly accommodating employer, does not in my view, persuade me that that the role of a Tipper Truck Driver as it exists in the employment market, is suitable employment as defined in section 32A of the 1987 Act, for the worker.

I also note the worker’s submissions that with the restrictions on the worker’s medical certificate, it is hard to be re-employed, and the job diaries and evidence the worker has provided of the extensive number of jobs, including tipper truck jobs the worker has applied for, without success.

Further, there is inadequate information before me as to the physical lifting requirements of such a role in the employment market. One employer advised that lifting up to 20 kilograms is required in the role, which clearly exceeds the worker’s lifting restriction, but this would be performed by yard staff. Other employers stated that there were lifting requirements, but did not specify how heavy the loads were that were required to be lifted in the role, and some employers went on to state that assistance could be provided by other staff.

Again, the difficulty with this is that I am required to assess whether the worker is able to perform the physical tasks and functions of the role in the employment market. The fact that the worker would be able to perform the physical requirements of the role with the assistance of other employees or in the employment of a particularly accommodating employer, does not persuade me that that the role is suitable employment for the worker as defined in section 32A of the 1987 Act.

I do acknowledge that it is reported that the worker “demonstrated capacity to perform Tipper Driver duties from 2012 until February 2014” as part of a WorkCover Job placement that was sourced on the worker’s behalf. However, a work site assessment report states that the worker’s duties in this particular role were to climb into a cab-over style truck and reverse down a driveway, close a trap with an automatic button, drive over a weighbridge, open a tailgate, and each load would take 90 minutes turnaround. Whilst I accept that the worker demonstrated a capacity to perform the particular requirements of that role which the worker occupied, I cannot be satisfied that the worker has demonstrated a capacity to perform the functional requirements of the role of a Tipper Truck Driver as it exists in the employment market, on the information now before me. I am required to assess if it is employment in work for which the worker is currently suited (emphasis added) on the information that is before me.

Contrary to the descriptions of roles and the general information before me concerning the role of a Tipper Truck Driver in the employment market, there appears to have been no requirement, on the description of the role that has been provided, for physical lifting in the particular role the worker occupied. Further, whilst the benefits of, and experience gained by the worker in a role sourced on the worker’s behalf in the Workcover Job Placement Program cannot be underestimated, this cannot be equated to the worker having secured and obtained such employment themself in such a role in the open employment market.

Further, I note a document dated 27 October 2014 signed by the treating doctor where approval was sought as to whether the roles “Tipper Truck Driver” and “Short Haul Truck Driver” were suitable employment for the worker. The treating doctor has circled “yes” to both roles and then stated “country or highway driving”, “no metro”, “please take in (sic) consideration the restrictions on the certificate of capacity”. The statement “country or highway driving” and “no metro” appear to be inconsistent with the worker’s functional capacity noting a driving restriction of 40 minutes. It is not entirely clear to me as to exactly what the treating doctor has intended to state or stated with such remarks. What is clear, however, is that the treating doctor has asked that “the restrictions of the certificate of capacity” be taken into consideration, which I note include a 14 kilogram lifting limit and a 40 minute driving restriction.

Further, whilst I note the worker’ age of 48 years, the worker’s MC truck licence, the worker’s qualifications in transport and distribution and the worker’s very extensive experience in driving trucks, a further difficulty arises due to conflicting information that is provided in the vocational assessment. Almost all employers contacted by the vocational assessor stated that liaising with customers “customer service skills” or “good customer service” were required to undertake the role of a Tipper Truck Driver within their organisations. The worker is reported at one point in the vocational assessment report to possess transferrable skills in “establishing and maintaining long term customer relationships”, and yet it is also reported a return to work barrier is that the worker has “no customer service skills”. In light of these apparently contradictory statements, it is not clear to me whether the worker does in fact possess a level of customer service skill appropriate to such a role as it exists in the employment market.

On balance, having regard to these matters, on the information that is now before me, I am not persuaded on the balance of probabilities that the role is suitable employment for the worker.

Whilst I note that roles of Weighbridge Operator and Mobile Plant Operator are identified as suitable employment in an earlier vocational assessment report dated July 2012, I note that it is also identified that the worker would require further training or lacks appropriate skills and/or experience to undertake these roles on the employment market. Further, these roles have not been the subject of further, recent vocational assessment and analysis as has been provided in the most recent vocational assessment report before me. Accordingly, I am not satisfied that these roles are suitable employment for the worker.

Having regard to these matters, and the definition of suitable employment in section 32A of the 1987 Act, on balance, I am not satisfied that the worker is able to return to suitable employment in any of the roles identified. Accordingly, I find that the worker has a present inability arising from an injury such that he is not able to return to work, either in the worker’s pre-injury employment or in suitable employment. I find that the worker has no current work capacity.

Existing recipient of weekly payments

An ‘existing recipient of weekly payments’ is defined in Division 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 worker is an existing recipient of weekly payments as the worker was in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments, being 1 October 2012. Therefore the weekly payments amendments as provided in Division 2, Part 19H, Schedule 6 of the 1987 Act apply to the worker’s entitlement to weekly payments of compensation.

Entitlement periods for ongoing weekly payments

The following provisions of the 1987 Act provide the basis for determination and calculation of worker’s weekly payments entitlement:

  1. Weekly payments in the first 13 weeks are to be determined in accordance with section 36 of the 1987 Act (“the first entitlement period”)
  2. Weekly payments in weeks 14–130 are to be determined in accordance with section 37 of the 1987 Act (“the second entitlement period”); and
  3. 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 Insurer has advised in its reply that the worker has been paid 307 weeks of weekly compensation payments as at the date of the reply. I find that the worker’s entitlement to weekly payments of compensation currently falls in the period after the second entitlement period and is to be determined in accordance with section 38 of the 1987 Act.

Section 38(2) of the 1987 Act provides:

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 that I have found that the worker has “no current work capacity” as defined in the legislation, on the basis that I am not satisfied that the suitable employment roles identified by the insurer is employment in work for which the worker is currently suited, and noting the reasons I have provided, I am satisfied that the worker is likely to continue indefinitely to have no current work capacity.

Calculation of entitlement

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

(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.

“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 is nil.

In accordance with section 38(6) of the 1987 Act, ($985.40 × 80%) – D, results in an entitlement to weekly compensation in the amount of $788.32.