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Findings and recommendations on merit review 007/15

Merit Review Service decision reference: 007/15

Date of review: August 2015

Findings on review

  • The worker has a present inability arising from an injury such that the worker  is not able to return to 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 does not satisfy 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).

Recommendations 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 is not entitled to weekly payments of compensation.

Background

The worker sustained a back injury during the course of employment as a Welder with the pre-injury employer. The accepted date of injury is the date of injury.

The worker did not return to work after the injury. The worker has been in receipt of weekly payments of compensation from the Insurer.

The Insurer made a work capacity decision on April 2015, finding that the worker had current work capacity, did not meet the requirements of section 38(3) of the 1987 Act and was not entitled to weekly payments of compensation.

The worker made an application for internal review of the Insurer’s work capacity decision. In a decision dated June 2015, the Insurer again found that the worker was not entitled to weekly payments of compensation.

The worker indicated in the application for merit review that they  received the insurer’s internal review decision on June 2015. However, the worker later advised the Authority  that they received the decision dated June 2015 by post, however, could not recall the actual date in which  the decision was received. The Insurer confirmed that they sent the decision to the worker by post.

Section 76 of the Interpretation Act 1987 provides that if an Act authorises or requires any document to be served by post, service of the document is taken to have been affected on the fourth working day after the letter was posted (the postal rule), unless there is contrary evidence sufficient to “raise doubt”.  A “working day" means a day that is not a Saturday or Sunday, or a public holiday or a bank holiday in the place to which the letter was addressed.

In light of the worker’s uncertainty as to the date the  internal review decision was  received and in the absence of any evidence “sufficient to raise doubt” to the contrary, I am satisfied that the above postal rule applies. The worker is therefore taken to have received notice of the insurer’s internal review decision on June 2015.

The worker’s application for merit review is dated July 2015 and was received by the Authority on July 2015. I am satisfied that this application has been made in the form approved by the Authority and within 30 days after the worker’s was notified of the insurer’s internal review decision as required 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), 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.

Information considered

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

I am satisfied that the information provided has been exchanged between the parties.

Submissions

In the application for merit review, the worker submits:

  • The worker  is not sure if the Insurer is paying the “right amount”.  The worker  was told after 14 years that medication costs could be claimed, but that this information was  not previously advised . .
  • On March 2015, the worker  attended an occupational rehabilitation provider. The worker explained that there was  no way of getting to the assessment and that the worker was suffering from depression and anxiety. When the worker arrived, the blood pressure was so high that the assessment  could not continue.
  • On March 2015, the occupational rehabilitation provider told the  “GP” that because of mental health issues they were not able to help him with job seeking.
  • The workers  certificate “was no hours no days”.
  • On March 2015, a representative from the occupational rehabilitation provider told the doctor the worker  needed to increase  hours to 40 hours per week so that they could put the worker  in job placement, “I left out of anger”.
  • On May 2015, the worker  sneezed in the shower and “put the back out again”.
  • 3 “WorkCover Certs in 8 days all different”.
  • The worker  is seeking help for  mental health. The worker  is becoming more isolated and withdrawn due to the Insurer.

In reply, the Insurer submits:

  • All issues raised by the worker have been previously addressed in the internal review decision. The Insurer has no further submissions to make.

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 is not a review of the Insurer’s processes 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 acknowledge that the worker submits that the Insurer failed to inform  that the worker  was able to claim the costs of medication and that  submissions are made relating to the conduct of the occupational rehabilitation provider. Such issues are not within the scope of this review. If the worker wishes to peruse these matters further,  it is open to raise these issues through  contacting Workers Compensation Customer Service Centre on 13 10 50.

Current work capacity

The worker had a history of back injury dating from approximately 1989. In August 1999, the worker aggravated the back while lifting gates in the course of carrying out  duties in the  pre-injury role with the pre-injury employer. The date of injury accepted by the Insurer is the date of injury.

The worker’s employment with the pre-injury employer was terminated approximately a week after the injury. The worker is not currently working.

The worker underwent conservative treatment in the form of physiotherapy and hydrotherapy. Surgery was advised in around 2003, however, the worker did not proceed with this.

The only recent medical information before me which contain an opinion as to the worker’s capacity for work are WorkCover NSW certificates of capacity which have been issued by the treating doctor and cover the period from February 2014 to August 2015. Throughout these certificates the treating doctor notes the worker’s diagnoses as “low lumbar disc generation”.

From February 2014, the treating doctor certified the worker with capacity for some type of employment for 15 hours per week with restrictions. This certification remained in place until March 2015, when the worker was certified with no capacity for any employment from March 2015.

In a certificate of capacity dated March 2015, the worker’s certified capacity was upgraded and  was certified as having capacity to undertake full time work. This certification remained in place until May 2015 when the worker  was again certified as having no current work capacity for the period from May 2015 to May 2015. I acknowledge that the worker’s submissions indicate that the worker  “put the  back out”  this time after sneezing in the shower.

However, in a certificate dated May 2015, the worker’s capacity was upgraded again and  was certified as having capacity for some type of employment for 4 hours per day 5 days per week with an ability to lift/carry up to 5 kg, a sitting and standing tolerance of 20 minutes and an ability to undertake “light” pushing and pulling. The treating doctor has consistently certified the worker with such capacity in all subsequent certificates.

There is a “GP Management Plan – Mental Health” before me which was completed by the treating doctor on May 2015. In this report, the treating doctor states that the worker was depressed, withdrawn and very anxious. It was reported that the worker felt as if someone was following him all the time “because of surveillance by insurance company”.

By letter also dated May 2015, the treating doctor referred the worker to the counsellor “for counselling”. A report from the counsellor to the treating doctor dated June 2015 indicates that the counsellor began seeing the worker for treatment. There are no further reports from the counsellor before me.

I acknowledge that the worker submits that they are  seeking help for mental health and that the worker  is becoming more isolated and withdrawn. I consider that the above information supports that. However, the treating doctor has nonetheless continued to certify the worker with some capacity for work consistently since May 2015.

In light of the treating doctor’s consistent certification that the worker has capacity for work since May 2015 and in the absence of any medical information to the contrary, I am satisfied that the worker capacity to undertake some type of employment, within the restrictions recommended by the treating doctor.

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

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.

These definitions require that I consider whether the worker can return to work in pre-injury employment and/or suitable employment in order to determine whether the worker  has “current work capacity” or “no current work capacity”.

Pre-injury employment

The worker’s pre-injury hours were full time. As I have found that the worker currently only has capacity to work for 20 hours per week, I am not satisfied that the worker can return to pre-injury hours of work.

The certificates of capacity issued by the treating doctor note that the worker sustained an injury “heavy lifting at work”. As the treating doctor certifies the worker with a lifting/carrying capacity of 5 kg, I am not satisfied that currently has the ability to undertake “heavy lifting”.

Further, whilst the treating doctor certified the worker with some capacity for work since May 2015, the doctor has not certified him as being “fit for pre-injury duties”.

In light of the above, I am satisfied that the worker has a present inability arising from an injury such that the worker is not able to return to pre-injury employment.

Suitable 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.

There are multiple vocational assessment/earning capacity assessment/labour market analysis reports before me. As the Vocational Assessment report from the occupational rehabilitation provider dated March 2015 is the most recent, I will focus on this report for the purposes of the following analysis, unless otherwise stated.

The worker is 48 years old. The worker was educated to a year 10 level and completed a Certificate II in Sport and Recreation Administration at TAFE in 1999.

The worker worked as a Welder from 1995 – 1999. Prior to that the worker worked as a Labourer, in a role which involved “operating a roller machine”, as a Baker’s Assistant, Painter’s Assistant, Sales Representative and Optical Assembler. The occupational rehabilitation provider identified the following roles as suitable employment options for the worker: Packer/Assembler, Cleaner and Leaflet and Newspaper Deliverer.

Packer/assembler/prices worker

On page 13 of the report the occupational rehabilitation provider set out the core duties that are involved in this role. They reported that according to the Dictionary of Occupation Titles, this vocation is rated as “light to heavy”. However, they reported that “labour market analysis has identified current Packer/Assembler (Light) roles within the specifications or the worker’s certificate of capacity”.

The occupational rehabilitation provider contacted 3 employers in respect of this role. While one employer contact reported that “workers are not required to lift above 5 to 10 kilograms, dependant on the section and task”, the remaining 2 companies both confirmed that the worker would not be required to lift more than 5 kg.

Whilst I acknowledge that the occupational rehabilitation provider identified that “standing for long periods” was a physical requirement that may be involved in the role, labour market contacts indicated that the worker would be able to alternate posture between sitting and standing. In particular, one contact advised there was work that could be conducted either sitting or standing at a stationary bench. Another contact indicated that some tasks/sections involved standing work and others sitting and that the worker could alternate between sitting and standing depending on the particular task/section.

There was no indication in the information provided by the occupational rehabilitation provider or the employer contacts that heavy pushing or pulling would be required. Further, information provided by employer contacts confirmed that roles were available on a part time and/or casual basis.

I consider that the above information supports that there are roles available within this occupation that are within the worker’s current capability, as outlined by the treating doctor.

Further, in a facsimile dated March 2015, the occupational rehabilitation provider set out the core duties that are involved in this role and ask the treating doctor to indicate whether he approved of this as a suitable vocational option for the worker to peruse. By return facsimile dated March 2015, the treating doctor indicated that it was.

In light of the above, I am satisfied that this role of work for which the worker is currently suited when having regard to the nature of the incapacity.

The occupational rehabilitation provider reported that there were no specific educational requirements for this role and that the worker would not require any retraining in order to undertake the role.

It was reported that as the worker has significant experience as a Welder and Labourer, the worker had a number of relevant transferable skills. A full list of these is outlined on page 6-7 of the report, however some of the skills which I consider relevant to this role include: technical and mechanical aptitude; machine operating experience; practical and manual skills; experience working in hot and dusty work environments; experience working with hazardous machinery and equipment; ability to work unsupervised; ability to work autonomously or as part of a team; ability to follow instructions; attention to detail; good hand / eye coordination; patience and accuracy; time management skills and problem solving skills.

I am also satisfied that this role is work for which the worker is currently suited when having regard to education, skills and work experience.

In light of the above and having regard to the balance of the matters referred to in section 32A of 1987 Act, I am satisfied that the role of Packer / Assembler / Process Worker is work for which the worker is currently suited.

I acknowledge that other suitable employment options have been identified for the worker in the information before me. However, in light of my findings below, it is not necessary that I also consider whether these other vocations are also “suitable employment” for the worker.

Findings on suitable employment and current work capacity

In light of the above, I am satisfied that the worker is able to return to work in suitable employment.

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

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 indicated in their reply that the worker was in receipt of weekly payments of compensation immediately before 1 October 2012. In the absence of any information to the contrary, I accept that.

I am therefore satisfied that 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 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 Insurer indicated in their reply that the worker had received 839 weeks of weekly payments of compensation.  In the absence of any information to the contrary, I accept that.

The worker’s entitlement to weekly payments of compensation therefore 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:

(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 $155 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.

The worker is only entitled to a continuation of weekly payments of compensation if all of the requirements above are met.

The information before me indicates that the worker is not currently working. I am therefore not satisfied that the worker has returned to work for not less than 15 hours per week or that the worker is in receipt of current weekly earnings of at least $173 per week (as currently indexed).

Further, I have found that the worker has the capacity to work 20 hours per week. As the worker  is not currently working, I am also not satisfied that the worker  could be assessed as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the workers current weekly earnings.

In light of the above, I am not satisfied that the special requirements in sections 38(3)(b) or (c) of the 1987 Act are met.

As the worker does not meet all of the special requirements under section 38(3) of the 1987 Act, the worker  is not entitled to a continuation of weekly payments of compensation after the second entitlement period.

In accordance with section 38 of the 1987 Act, I find that the worker is not entitled to weekly payments of compensation.

Merit Review Service
Delegate of the WorkCover Authority of NSW