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Findings and recommendations on merit review 003/14

Merit Review Service decision reference: 003/14

Date of review: September 2014

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 the worker is unable to return to his pre-injury employment.
  • The worker is able to return to work in suitable employment.
  • The worker has current work capacity.
  • The worker is an existing recipient of weekly payments.
  • The worker satisfies the special requirements for continuation of weekly payments after the second entitlement period (after week 130) pursuant to section 38 of the Workers Compensation Act 1987 (the 1987 Act).
  • The worker’s deemed pre injury average weekly earnings are $985.40.
  • The worker’s current weekly earnings are $380.00.
  • The worker is able to earn $380.00 per week in suitable employment.

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 in accordance with section 44(3)(g) of the Workers Compensation Act 1987 Act (the 1987 Act).

  • The worker is entitled to weekly payments of compensation in accordance with section 38(7) of the 1987 Act, in the amount of $408.32.

Background

The worker sustained a fractured pelvis, ruptured urethra, urinary incontinence, a prolapsed L/S disc, dislocated shoulder and fracture/dislocation to the workers left elbow while undertaking their pre-injury role as a truck driver.  The Insurer accepts the date of injury.

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 on in  January 2015, ceasing the worker’s entitlement to weekly payments of compensation pursuant to section 38 of the 1987 Act.

The Insurer undertook an internal review on 6 July 2015. The internal review maintained the decision to cease the worker’s entitlement to weekly payments of compensation.

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

Submissions

The worker submits:

  • Weekly benefits should be reinstated.
  • Medical expenses should be paid to help manage his sexual dysfunction and pain.
  • Increasing their workload above 20 hours per week results in increased pain and discomfort to the point of being intolerable.
  • The worker  suffers from inability to sleep, and incontinence.
  • The treating doctor believes the worker should be limited to 4 hours work per day.
  • The treating doctor reluctantly increased the worker’s hours at the insistence of a person from the occupational rehabilitation provider, but the treating doctor has now restricted the worker to 20 hours per week.
  • The worker’s sexual difficulties are a direct result of the accident on 19 September 1991. This condition is permanent. It can be managed to some extent with medication, which the worker believes the Insurer is required to pay for.
  • Needed at times, mainly to help the worker rest comfortably.

In reply, the Insurer submits:

  • The worker has the capacity to work 40 hours per week in suitable employment.
  • The most recent certificate of capacity issued by the treating doctor on in   March  2015 states that the worker has a capacity to work 8 hours a day 5 days a week with restrictions.
  • The worker is currently working 20 hours per week in their own business.
  • The worker’s statutory declaration shows that the worker is working 20 hours per week, earning $19 per hour which equates to $380.00 gross per week. However, as the worker has the capacity to work 40 hours per week, the worker has the ability to earn $760 per week in their current position.
  • As the worker’s claim was lodged prior to 1 October 2012, the worker deemed pre-injury average weekly earnings (PIAWE) will be the transitional rate of $985.40 effective as of 1 April 2015.

Documents considered

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

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.

Reasons

Nature and scope 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 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.

The worker has made a number of submissions concerning the ongoing need for medical treatment expenses to be paid. However this is a review of the worker’s current work capacity and ultimately, their entitlement if any, to weekly payments of compensation. Accordingly, the matters the worker has raised concerning medical treatment expenses are outside of the scope of this review.

Current work capacity and suitable employment

On the date of injury, the worker was undertaking his duties as a truck driver, when the worker sustained fractures of the worker pelvis, a fracture dislocation of the worker left elbow and the worker left shoulder. the worker also experienced pain in their lower back. the worker underwent a closed reduction of a  the worker dislocated left shoulder and fracture dislocation to their left elbow. the workers arm was put into a sling. the worker underwent a repair of a ruptured urethra three weeks after the workers admission to hospital.

The worker has reported that they returned to work approximately two years after the original injury. the worker set up their own company, where the worker drives on average four hours per day, and the only heavy work the worker has to do is involved in strapping and tying logs onto the truck.

When examined by a specialist in February 2015, the worker reported that the worker continues to experience lower back pain and intermittent posterior left leg pain which radiates down to the calf. The worker reported that the worker has intermittent paraesthesia in the worker left calf.  The worker also reports intermittent weakness in the right and left knees. The worker has a continual dull ache in the worker left elbow and the worker has to mobilise this to get rid of the noise.

When examined, the specialist provided an opinion that the worker’s “left shoulder and elbow have fully recovered”. The specialist noted the worker’s residual symptoms were coming from the workers lower back and presumed that this was a result of the worker’s L5/S1 disc protrusion.

With respect to the worker’s capacity for employment, the specialist stated:

“From the result of the continued lumbrosacral disc symptoms, I believe the worker is limited in terms of the hours worked to four hours per day, but despite this, the worker is still able to drive a truck for four hours per day and the worker also does some machining for shafts for saw mills”.

Whilst I note that there are a number of WorkCover Medical Certificates of Capacity issued earlier this year which state that the specialist had the capacity to under full-time hours of 40 hours per week with restrictions, since May 2015, certificates of capacity issued by the treating doctor support that the worker’s capacity is limited to part-time employment.

The most recent WorkCover Certificate of Capacity before me is dated July 2015 and covers the period from July 2015 to 2015 October 2015. In that certificate, the worker is certified by the treating doctor as having capacity to undertake some type of employment for 4 hours a day, 5 days a week with restrictions of a lifting/carrying capacity of 15-18 kilograms occasionally, sitting tolerance of 1 hour, standing tolerance of 30 minutes not on a hard surface, must be dynamic standing, pushing/pulling limited to 12.5 kilograms occasionally, bending/twisting and squatting as tolerated as an isolated movement, and driving ability of one hour.

Whilst I note that the Insurer submits that the worker has the capacity to undertake 40 hours of employment per week, and the worker was previously certified to undertake these hours, this is an assessment of the worker’s current work capacity (emphasis added). The medical information before me from the treating doctor as to the worker’s current work capacity, supports that the worker’s capacity is limited to 4 hours employment per day. This is consistent with the recent opinion of the specialist.

Further, whilst I note that the worker has made numerous submissions in this review regarding their inability to sleep, incontinence and sexual difficulties, this is a review of the Insurer’s decision concerning the worker’s “current work capacity”. Accordingly, the issue I must consider is the impact of the injury and such matters upon the worker’s capacity to undertake employment. Therefore, whilst I acknowledge the worker’s submissions, I also note that both the specialist and the treating doctor, who have considered such matters, have provided medical opinions that are consistent, which support that  the worker is able to work 4 hours a day, 5 days per week, on a  weekly basis.

Accordingly, I find that the worker has the capacity to undertake employment 4 hours a day, 5 days a week with restrictions as certified by the treating doctor. These are: a lifting/carrying capacity of 15-18 kilograms occasionally, sitting tolerance of 1 hour, standing tolerance of 30 minutes not on a hard surface, must be dynamic standing, pushing/pulling limited to 12.5 kilograms occasionally, bending/twisting and squatting as tolerated as an isolated movement, and driving ability of one hour.

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 their pre-injury employment but is able to return to work in suitable employment

The worker’s pre-injury employment as a full-time truck driver required the performance of duties on a full-time, 38 hour per week basis. However, I have found that the worker is limited to undertaking part-time employment. Accordingly, I find that the worker is unable to return to their 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 market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.

In a report conducted in November 2014 provided by an occupational rehabilitation provider, it is reported that the worker has operated their own business and performed the duties of a part-time truck driver since 1993.  In this role, the worker works 20 hours per week, and all work is completed in the morning, allowing the worker to rest in the afternoon. In this role the worker has implemented systems to accommodate their functional capacity limitations.

The worker purchased equipment to assist with lifting tasks, and has rubber mats on the workshop floor. The worker undertakes welding and truck maintenance, and operates a lathe and other metal machinery on trucks and related equipment.

The worker has managed to undertake the physical requirements of the role of truck driver in self- employment for a significant length of time, for numerous years. The worker has demonstrated an ability to undertake the physical requirements of the role for 4 hours per day, 5 days per week, and submits that increasing their workload above 20 hours per week results in increased pain and discomfort to the point of being intolerable.

Accordingly, I am satisfied that the physical requirements of the role of a Truck Driver are suitable for the worker having regard to the nature of their ‘incapacity. Further, the worker is a “career” truck driver and clearly has extensive skills and work experience suited to the role.

On balance, having regard to these matters including the nature of the worker’s incapacity, the workers skills, work experience, and noting the balance of matters referred to in section 32A of the 1987 Act, I am satisfied that the role of part-time Truck Driver is suitable employment for  the worker .

I note that in an executive summary of the report in November 2014, the roles of Delivery Driver and Fitter and Turner are referred to as suitable employment for the worker . With respect to the role of a Delivery Driver, the reports that the treating doctor did not approve the role stating that it would “require [the worker] to undertake repetitive lifting and adhere to strict deadlines”. I accept the view of the treating doctor in that respect, and, I am not satisfied that the physical requirements of the role of a Delivery Driver are suitable having regard to the nature of the worker’s incapacity.

With respect to the role of a Fitter Turner, the occupational rehabilitation provider was advised by numerous employers that any employee would be required to lift 20-25 kilograms in the role, clearly exceeding the worker’s lifting capacity. Accordingly, I am not satisfied that the physical requirements of the role of a Fitter Turner are suitable having regard to the nature of the worker’s incapacity. However, as I have found that the worker is able to return to work in suitable employment as a part-time Truck Driver, I find that the worker has 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.

In the reply dated 30 July 2015, the Insurer has advised that the worker was in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments, in October 2012. I accept that. 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:

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 Insurer has indicated in the reply that the worker has been in receipt of weekly benefits for 1211 weeks. I accept that. I find that the worker’s entitlement to weekly payments of compensation currently falls in the second entitlement period and is to be calculated 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 after the second entitlement period is only available 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.
(3) A worker who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if:

(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $173 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.

As I have found that the worker has current work capacity and that the worker has received greater than 130 weeks of weekly payments, their entitlement to further weekly payments must be determined in accordance with section 38(3) of the 1987 Act.

In order for the worker to continue to be eligible to receive payments of weekly compensation, the worker must meet all of the requirements set out in section 38(3) of the 1987 Act.

As the worker  is an existing recipient of weekly payments and there is no evidence that the Insurer notified  them of the notice requirement in section 38(3)(a) of the 1987 Act, I am satisfied pursuant to clause 16, Schedule 8 of the Workers Compensation Regulation 2010, that section 38(3)(a) of the 1987 Act is fulfilled.

In order to fulfil the requirements of section 38(3) (b) of the 1987 Act, the worker must have returned to work for not less than 15 hours per week and must earn at least $173 per week. The information before me, including the worker’s statutory declaration and information provided in vocational assessment material, consistently supports that the worker has returned to work for at least 15 hours per week and is in receipt of current weekly earnings of at least $173 per week. Accordingly, I am satisfied the worker meets the requirements imposed by section 38(3)(b) of the legislation.

In relation to the requirement in section 38(3)(c) of the 1987 Act, I have found that the worker has the capacity to work 20 hours per week, which the worker undertakes. Accordingly, I am satisfied that the worker is, and is likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase their current weekly earnings. Therefore the worker satisfies the requirements of section 38(3) (c) of the 1987 Act.

The worker therefore meets the special requirements for continuation of weekly payments after the second entitlement period (after 130 weeks) under section 38(3) of the 1987 Act. I therefore find that in accordance with section 38 of the 1987 Act, the worker has an entitlement to weekly payments of compensation.

Calculation of entitlement

The worker’s entitlement is to be calculated in accordance with section 38(7) of the 1987 Act which provides:

(7)  The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after 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.

“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.

As I have found that the worker is an existing recipient of weekly compensation, 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.

“E” is the greater of the amount that the worker is able to earn in suitable employment, or the worker current weekly earnings.

Current weekly earnings

Current weekly earnings are defined in section 44I of the 1987 Act. As the worker is self-employed, I must assess the worker “actual earnings” in respect of a week. The worker has provided a statutory declaration stating that the worker ordinary gross hourly rate is $19.00 per hour. For a 20 hour work week, the worker ordinary gross earnings per week are $380.00, and I am satisfied that the worker “currently weekly earnings” for the purposes of section 44I(b) of the 1987 Act, is $380 per week.

Ability to earn in suitable employment

I have determined that the worker has the capacity to undertake 20 hours per week of employment as a part-time Truck Driver.

In the report provided by an occupational rehabilitation provider dated November 2014, it is reported that the “potential earning capacity” of a Truck Driver “based on local labour market information” is $21.67 hour. I note that this appears to be a figured divided from a job markets industry average of $823.46 per week based on a full-time 38 hour working work.  However, I am required to assess the worker’s ability to earn in suitable employment as a part-time Truck Driver having regard to the nature of the worker incapacity, and the balance of matters referred to in section 32A of the 1987 Act.

The worker has significant ongoing restrictions arising from the injury that impact upon the worker ability to undertake the duties of a truck driver, including restrictions that the worker  is only able to work part-time on a 4 hour per day basis, lifting/carrying capacity of 15-18 kilograms occasionally, sitting tolerance of 1 hour, standing tolerance of 30 minutes not on a hard surface, must be dynamic standing, pushing/pulling limited to 12.5 kilograms occasionally, bending/twisting and squatting as tolerated as an isolated movement, and driving ability of one hour.

The information provided in the report regarding the worker’s ability to earn refers to full-time roles, and does not in my view, sufficiently address these restrictions in providing an assessment of the worker’s ability to earn. Accordingly, in my view, the figure which best represents the worker’s ability to earn, is what the worker currently earns in the worker self-employment role, being $19.00, which I note is not significantly removed from the figure of $21.67 per hour, in any event.

Accordingly, I find the worker is able to earn $380 per week in the role of a part-time Truck Driver.

As this amount is the same amount as the worker’s current weekly earnings, I find the greater amount for the purposes of “E” to be $380.00.

Applying the formula in section 38(7)(a) of the 1987 Act, (AWE × 80%) − (E + D), leads to the following calculation: ($985.40 x 80%= $788.32) - $380.00 = $408.32.

Applying the formula in section 38(7)(b) of the 1987 Act in the worker’s  case, leads to the following calculation: MAX − (E + D), = $1999.30 - ($380.00 + $0) = $ 1619.30.

The results from above calculations give two possible figures for the amount of weekly payments of compensation payable to the worker: $408.32 or $1619.30. However section 38(7) requires that I apply the lesser of these two amounts, which in the worker’s case is $408.32.

Accordingly, I find that the worker is entitled to weekly payments of compensation in the amount of $408.32.

Merit Review Service
Delegate of the WorkCover Authority of NSW