LMB v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMR 70
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | LMB v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 70 |
CLAIMANT: | LMB |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
MERIT REVIEWER: | Jeremy Lum |
DATE OF DECISION: | 22 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review of insurer’s post-earning capacity decision under section 3.16; insurer’s decision to decrease the amount of weekly payments of statutory benefits (after the second entitlement period or 78 weeks) made to the claimant on the basis that the claimant has capacity to earn in any employment reasonably available to the claimant under Schedule 1, clause 8; factors to be considered in relation to fitness for work; Held – claimant not fit to work in any of the employment options identified by the insurer; the reviewable decision dated 7 June 2024 is set aside with the insurer to re-calculate the claimant’s weekly payments of statutory benefits in accordance with the merit review decision. |
DETERMINATIONS MADE: | CERTIFICATE The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Motor Accidents Injuries Act 2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act. 1. The reviewable decision dated 7 June 2024 is: (a) set aside with the insurer to re-calculate the claimant’s weekly payments of statutory benefits after the second entitlement period in accordance with this merit review decision. 2. No order as to costs. |
STATEMENT OF REASONS
BACKGROUND
Mr LMB (the claimant) was involved in a motor accident on 12 February 2023. The claimant was a pillion passenger on a motorcycle driven by his friend which was involved in a collision at a roundabout. Tragically, his friend died in the accident.[1]
[1] Given the circumstances of the accident, the claimant’s name is de-identified pursuant to clause 132(1) of the Personal Injury Commission Rules 2021.
The claimant says he sustained multiple injuries as a result of the accident and made an application for statutory benefits on 19 February 2023.
The insurer denied liability for the claim pending further investigations but paid the claimant weekly payments of statutory benefits.
THE DISPUTE
On 7 June 2024, the insurer made a post-earning capacity decision under s 3.16 of the Motor Accidents Injuries Act 2017 (MAI Act) finding that the claimant is fit to work in employment as a general clerk, customer service representative and sports coaches, instructors and officials for 27 hours per week.
As a result of the insurer’s decision, after the second entitlement period (after week 78), there would be a reduction to the amount of weekly payments paid to the claimant effective 12 August 2024.
While the claimant agrees that he has the physical capacity to work 27 hours per week at the time of the insurer’s decision, he says his English skills are inadequate for the roles identified by the insurer.
The dispute before me therefore concerns whether the claimant is fit to work in the employment options identified by the insurer.
At the teleconference on 16 October 2024, counsel for the claimant stated that the claimant had recently undergone hip surgery on 30 August 2024 and that there is a Certificate of Capacity dated 15 October 2024 certifying the claimant as having no current work capacity. I indicated that while noted, this was of no relevance in the current proceedings which is to review the decision of the insurer dated 7 June 2024.
The insurer maintained that the claimant was fit to work in all the employment options identified. I indicated that I had all the information to make a determination on the papers without a hearing. The parties were happy for me to proceed on that basis.
DECISION UNDER REVIEW
The insurer’s earning capacity decision is dated 7 June 2024 which was affirmed on internal review in a decision dated 31 July 2024. These decisions will collectively comprise of the “reviewable decision”[2] considered in this merit review.
[2] As defined under s 7.10 of MAI Act.
The reviewable decision relates to the claimant’s post-accident earning capacity after the second entitlement period (after week 78) for which weekly payments of statutory benefits are payable.
The reviewable decision essentially refers to and relies on the Vocational Assessment Report from Benchmark Rehabilitation (Benchmark Rehab) dated 7 December 2023 which also included a Labour Market Analysis report dated 5 June 2024.
The insurer found that the report of Benchmark Rehab, together with the claimant’s general practitioner (GP), Dr Melo, provided their support for the following roles:
(a) general clerk;
(b) customer service representative, and
(c) sports coaches, instructors and officials.
The insurer reproduced a table from Benchmark Rehab which matched the claimant’s purported computer skills, English skills and previous work experience conversing in English with clients and general sporting interest to make the above roles suitable. Contact was also made to prospective employers advertising vacant positions for the above roles.
The insurer noted the following:
“The claimant’s supporting interpreter advised that his English language skills are above basic level with writing skills rated as basic.
Also, Benchmark rehab noted that you uphold [sic] experience liaising with customers in English and Spanish in his previous role as a Solar Panel Installer. You demonstrated experience with interacting with clients over the phone and face-to-face.
Benchmark rehab noted that you were observed to read through technical information presented in English, which demonstrated that your English reading skills are proficient. Benchmark rehab also noted that you are able to communicate effectively in general conversations.
Benchmark rehab noted that Airport Hotel Arncliffe has recently advertised for a Front Office Hotel Receptionist/Customer Service Officer position. The advertisement stipulates that the candidates who speak Spanish are highly desirable, making you a well-suited employee considering your first language is Spanish.”[3]
[3] Paragraph 7 of internal review decision.
The insurer ultimately chose the role of customer service representative as being reasonably available employment for the claimant. Based on the claimant’s post-accident capacity to work 27 hours per week, earning an average of $29.83 per hour, the insurer calculated the claimant’s post-accident earning capacity to be $805.41. Factoring the claimant’s pre-accident weekly earnings of $1,056.29, the claimant’s weekly payments of statutory benefits was calculated to be $252.99.
RELEVANT STATUTORY PROVISIONS
Schedule 1 cl 8 of the MAI Act is central to the dispute. That provision, as it is relevant, is reproduced as follows:
“8 Meaning of ‘post-accident earning capacity’
(1) Post-accident earning capacity of an injured person means –
(a)…
(b)For any period after the second entitlement period – the weekly amount the person has the capacity to earn in any employment reasonably available to the person, determined on the basis of the person’s fitness for work in any such employment.
(2) …
(3) A person’s fitness for work after the second entitlement period is to be determined having regard to the following –
(a)the nature of the injury and the likely process of recovery,
(b)treatment provided and rehabilitation undertaken and the potential for further treatment and rehabilitation,
(c)the person’s training, skills and experience,
(d)the age of the person,
(e)any medical certificate provided by the injured person as to the person’s fitness for work.
(4) The Motor Accident Guidelines may make provision for the matters to be taken into account for the purposes of determining the employment reasonably available to a person in any period after the second entitlement period.”
Clause 4.60 of the Motor Accident Guidelines (the Guidelines) expands on the above with the following factors to be considered:
(a)the nature and extent of the claimant’s injuries;
(b)the claimant’s age, education, skills and work experience;
(c)rehabilitation services that are being or have been provided;
(d)the nature of the claimant’s pre-injury employment;
(e)the claimant’s place of residence at the time of the motor accident;
(f)the details given in the claimant’s certificate of fitness;
(g)the length of time the claimant has been seeking employment, and
(h)any other relevant circumstances.
SUBMISSIONS
Claimant’s submissions
As noted above, the claimant does not dispute the insurer’s decision on capacity, namely that at the time of the reviewable decision, the claimant had capacity for “some type of work” for 27 hours per week as identified in the Certificate of Fitness dated 4 June 2024.
The dispute relates only to the insurer’s finding that the claimant can “work 27 hours per week as a Customer Service Representative earning an average of $29.83 per hour”. The claimant says he has inadequate English skills to work in any of the positions identified by Benchmark Rehab in its Vocational Assessment Report (VOC).
The claimant says the VOC acknowledged that Benchmark Rehab was able to communicate with the claimant via telephone and face-to-face with the support of a Spanish interpreter. It is asserted that the need of a Spanish interpreter is not consistent with the conclusions of the report.
The claimant says he has not been provided with any formal English classes and that the rehabilitation consultant Ms Mahoney’s vague description of the claimant’s language skills being “above basic level” is telling.
Furthermore, it is submitted that Ms Mahoney acknowledged the claimant’s language impediment in her “Summary of Findings”, namely, that the claimant’s English language and literacy skills were identified as “Barriers/Risks”. Ms Mahoney stated:
“Benchmark Rehab to empower and motivate LMB to continue improving his English skills. Benchmark Rehab to support LMB to identify employers that offer an opportunity to learn English whilst utilise his first language of Spanish.”
With respect to the Labour Market Analysis report, the claimant says Benchmark Rehab “glossed over the claimant’s English skills” and that the role descriptions of the employment options identified are beyond the claimant’s language capacity. Furthermore, there is a dearth of detail in what the positions require in terms of English skills and generally.
The claimant refers specifically to the role of front office hotel receptionist/customer service officer where it was noted that the specific hotel (Airport Hotel Arncliffe) was not contacted and that such a niche role would require the claimant to act at times as a quasi-porter which would exceed the claimant’s physical restrictions.
In relation to the claimant’s English language skills:
(a) it is apparent from Ms Mahoney’s comments alone that the claimant has limited English skills;
(b) observations made throughout the clinical notes identify the claimant’s difficulties in communicating in English. The ambulance report for example noted “Spanish, minimal English, difficult to communicate with.”;
(c) the claimant’s statement dated 9 July 2024 addresses the problems confronting the claimant because of his poor English, and
(d) Benchmark Rehab have not properly assessed the claimant’s English skills and has done nothing towards enrolling him in an English course. It is submitted that the insurer has failed to “proactively support the claimant to optimise their recovery and return to work or other activities”.
In a further statement dated 16 October 2024, the claimant clarified that Ms Mahoney did in fact suggest free English classes hosted by a particular organisation. However, the claimant says these were the same classes as those found by the claimant in May 2024 of which he attended for two weeks. He stopped attending because they lacked any programmatic content and did not improve his speaking. He subsequently advised Ms Mahoney of this on 19 June 2024 and requested assistance with other types of English classes. He stated that Ms Mahoney responded by saying she had not known what the classes were like since she had found them by searching online.
Furthermore, the claimant says he has been asking Benchmark Rehab and different case managers to be provided with the opportunity to attend suitable English classes since last year. He says even his psychologist has sent an email (attachment 2) asking for English classes to be provided.
I note that the email correspondence between the claimant and Ms Mahoney and his psychologist are included in the documents before me and support the claimant’s account.
The claimant concludes that because of his poor command of English, none of the identified employment options are “reasonably available” to him within the meaning of Schedule 1 cl 8 of the MAI Act.
The claimant seeks an order that the insurer’s decision be set aside with a finding that the claimant has no current earning capacity.
Insurer’s submissions
The insurer refers to Benchmark Rehab’s continued involvement in the claimant’s vocational and rehabilitative efforts. It has engaged the claimant in addressing:
(a) online job seeking;
(b) resume development;
(c) cover letter development;
(d) interview skills;
(e) injury disclosure;
(f) State Insurance Regulatory Authority vocational programs;
(g) cold canvassing;
(h) networking, and
(i) registering with recruitment agencies.
The insurer says identified roles are reasonably available to the claimant because:
(a) Benchmark Rehab have investigated available free English classes for the claimant to engage in.
(b) Benchmark Rehab have liaised with both the claimant and an interpreter who affirmed that the claimant has above basic spoken English, and basic written English skills.
(c) The claimant has previous experience in liaising with customers over the phone and in person in both English and Spanish in a prior role as a solar panel installer.
(d) During rehabilitative assessments, the claimant was observed to read technical information presented in English, demonstrating a reasonable reading proficiency. The claimant was also observed to communicate effectively conversationally.
(e) Benchmark Rehab have liaised with potential employers, including Airport Hotel Arncliffe who confirm that Spanish speaking candidates are highly desirable and that the claimant would be a desirable candidate for such a role.
The insurer further states that the claimant’s submission that the role of front office hotel receptionist/customer service officer at Airport Hotel Arncliffe would involve acting as a quasi-porter is unfounded and based on pure speculation on the claimant’s part.
The identified roles were confirmed to be suitable by the claimant’s treatment providers, including his general practitioner and exercise physiologist.
The claimant’s submission that he has insufficient English to obtain employment is based on pure speculation, without reference to any successful or unsuccessful attempts to apply for, obtain and maintain employment post-accident. In the absence of evidence of the claimant having trialled such employment, it cannot be said he does not have capacity for the same.
The insurer seeks an order that its reviewable decision be upheld insofar as it relates to the pre-hip surgical period.
THE CLAIMANT’S PRE-ACCIDENT WORK
The claimant’s pre-accident work is detailed in the Benchmark Rehab report and also in the claimant’s statement.
The claimant’s immediate pre-accident work was as a casual cleaner for which he worked full time (up to 40 hours per week) for the period 2022-2023. Before that, also from 2022-2023, he worked as a solar panel installer, warehouse assistant, packer and set up assistant for an event company.
As the claimant states that he arrived in Australia in October 2022 with the motor accident occurring in March 2023, this indicates that the claimant had multiple jobs in a short period of about six months.
CONSIDERATION
As reproduced above, the MAI Act and the Guidelines require a number of factors to be taken into account when determining a claimant’s post-accident earning capacity. The claimant largely agrees that the claimant has the physical capacity to work 27 hours per week at the time of the insurer’s decision. Accordingly, the evidence regarding the nature of the injury and the various certificates of capacity are of lesser relevance to the determination of the merit review.
I turn now to consideration of the relevant factors.
The nature and extent of the claimant’s injuries
The claimant sustained multiple injuries as a result of the motor accident which were described by his GP Dr Chen as being “quite severe”. St Vincent’s Hospital issued a medical certificate stating that he was not to work until after 7 April 2023.[4]
[4] Page 115 of the application documents.
At the time of the reviewable decision however, made just over a year later on 7 June 2024, the claimant was certified fit by his GP to work in some type of employment for 27 hours per week with certain restrictions. That employment has been identified by the insurer as general clerk, customer service representative and sports coaches, instructors and officials.
There is no dispute regarding the claimant’s above physical capacity. Having considered the nature and extent of the claimant’s injuries, I find that the claimant was physically fit to work 27 hours per week in the employment options as identified by the insurer.
The claimant’s age, education, skills and work experience
In his statement the claimant says he was born in Columbia and was 34 years of age at the time of the motor accident. He undertook his schooling in Colombia and thereafter studied accounting in Columbia and in Spain before working in that industry.
The claimant arrived in Australia in October 2022 and studied English while concurrently performing manual work as a cleaner, solar panel installer, warehouse assistance, packer and set up assistant with an events company. I note that this is consistent with the work history documented in the report of Benchmark Rehab.
In terms of learning English, the claimant says he studied at Universal English College and was at an intermediate level about four months after his arrival to Australia. After the accident, he tried to attend in-person classes but found his pain to be too severe. He attempted online classes but found that he could not learn as much as he could not actively participate and interact. At the end of 2023, he paid for some one-hour online classes which he says helped him a little but he could not afford to continue with these.
As noted above, Benchmark Rehab did attempt to recommend free online classes however the claimant had already tried such classes and found them to be of no assistance.
The claimant’s view of his English proficiency is as follows:
“My struggle with English is obvious to everybody that I seek to converse with in English including the doctors that I have seen for treatment and the rehabilitation providers. I have often had the benefit of an interpreter at appointments. I have been able to learn some medical terms and ways of expressing myself about my recovery.
To improve my English skills I have been able to study on my own at home, and my vocabulary has improved through looking up words, watching television and movies in English with and without the aid of subtitles. I try to work on my grammar with apps such as Duolingo.
I have a good basis English vocabulary and I can understand a lot of words when people speak patiently in person. To best understand I need to look at a person’s facial expressions and gestures. On a conversational level, my biggest problem is speaking. I can speak the basics however, I have not been able to improve much, I think in part due to the lack of interaction. My accent often creates a barrier and I tend to be affected by mental blockages due to stress. I can’t hold a conversation over the phone.”
Benchmark Rehab’s VOC dated 7 December 2023 indicates that the claimant was physically interviewed in the presence of Ms Mahoney and a National Accreditation Authority for Translators and Interpreter (NAATI) approved interpreter.
Benchmark Rehab noted that the claimant was educated to year 12 equivalent and had Bachelor’s and Masters degrees in accounting. These university qualifications were obtained in Columbia and Spain.
Benchmark Rehab further noted that it was able to effectively communicate with the claimant via telephone and face-to-face, with the support of a Spanish interpreter.
Benchmark Rehab also noted that the supporting interpreter viewed the claimant’s English language and writing skills as above basic level and basic level respectively.
Benchmark Rehab stated that it would “empower and motivate” the claimant to continue improving his English skills. It would also support the claimant by identifying employers that offer an opportunity to learn English whilst utilising his first language of Spanish.
I note that in the Labour Market Analysis report, the three employment options including canvassing local employers who had advertised their respective roles in the general labour market.
General clerk
Benchmark Rehab conducted an analysis of the advertised roles and stated the general requirement for “Good communication skills – written and verbal”. The candidate would also be required to have “Strong customer service skills with willingness to support clients with enquiries”.
I accept that the claimant has the computer proficiency skills to be fit for the role of general clerk. On his qualifications alone, with a Bachelor’s and Master’s degree in accounting, one would think the claimant is overqualified for a role that only requires data entry into computers, photocopying and the preparation of routine reports.
However, the evidence before me indicates that the claimant’s qualifications were obtained in a non-English speaking country. Before his arrival to Australia, he worked in accountancy in Spain or Columbia. There is no evidence to suggest that he would be fit to operate the computer systems in general clerk roles in Australia, which would likely be programmed in the English language.
In terms of the claimant’s spoken and written English, I am not of the view that he has the requisite proficiency. The evidence before me indicates that his English has not been formally evaluated, with Benchmark Rehab making observations based on an interpreter that has worked with the claimant on only a few occasions. The interpreter’s observations indicate basic or above basic level which do not meet the requisite English proficiency stated by Benchmark Rehab.
The labour market roles identified by Benchmark only identified one role, which has been filled and as such, is no longer considered reasonably available to the claimant. Moreover, there is a paucity of information provided by the employer contact who simply stated that the role was centralised around general office duties including computer data-entry type work and the filling in of documentation.
Benchmark Rehab also made the following observation:
“Benchmark Rehab advises that [the claimant] is still learning English, however, is able to verbally communicate effectively in general conversations. LMB has been observed by Benchmark Rehab to read through technical information presented in English which demonstrates that his English reading skills are proficient to secure a role in a General Clerk position.”
I do not accept Benchmark Rehab’s above view that the claimant has the requisite English language skills to be fit for the role. Ms Mahoney’s findings that the claimant can read through technical information presented in English goes against her previously stated observation that the claimant only has English language and writing skills that are above basic level and basic level respectively. It is also not consistent with the claimant’s stated difficulties with general conversing in English and the need for more English classes.
Customer service representative
The role of customer service representative is outlined by Benchmark Rehab as requiring the selling of goods and/or services and providing support to customers. A single employer contact stated that the role requires customer service experience and excellent communication and interpersonal skills.
I do not accept Benchmark Rehab’s finding that the claimant’s previous experience as a solar panel installer makes him fit for this role.
The claimant’s work experience in Australia is limited to 2022-2023 which is further condensed to a period of about six months from his date of arrival to the date of the motor accident. During this short period, the claimant worked in no less than five roles, all physical in nature with little or no evidence to suggest he would be required to speak or write English to the level required in the role of a customer service representative.
I have considered Benchmark Rehab’s finding that the claimant would have liaised with clients in both English and Spanish as well as over the phone and face-to-face. Again, there lack of any detail in the nature of those customer interactions and whether the claimant did in fact utilise customer service or English skills to the requisite standard of the role of a customer service representative.
Sports coaches, instructors and officials
Benchmark Rehab’s description of this role includes the requirement to have a valid Working with Children Check, experience in sports coaching, good communication and interpersonal skills and the physical need for prolonged standing and repetitive movements when demonstrating (sporting) actions and techniques.
Benchmark Rehab noted the claimant’s interest in such a role and has experience as a player in semi-professional soccer, however lacks the qualifications in order to be competitive for current vacancies. As such, Benchmark Rehab recommended that the claimant obtain a number of training certificates.
I do not consider the claimant fit for the role of sports coaches, instructors and officials. He has a standing restriction of 40 minutes and is to avoid repetitive shoulder movements. In addition, there is no evidence that he has the required Working with Children Check, Police Check or possesses the work experience and English communication skills to be fit for the role.
Rehabilitation services that are being or have been provided
The claimant has been provided with occupational rehabilitation services through Benchmark Rehab. However, such rehabilitation at the time of the reviewable decision do not appear to be complete. The claimant has not completed the module of “Apply for roles online” nor “Identify suitable employers” or “Cold canvass potential employers”. It was Benchmark Rehab’s view that the claimant “may require support with these activities as he is still improving his English skills”.
I note the insurer’s submission that the claimant failed to refer to any attempts in applying for and maintaining employment post-accident. I do not accept this submission as it is plain from the report of Benchmark Rehab’s that occupational rehabilitation modules relevant to the job application process are incomplete and continuing. While the claimant has not participated in any work trials, it does not appear that any work trials have been offered to him.
In my view, as rehabilitation services are incomplete at the time of the making of the reviewable decision, this renders the claimant less fit for employment in the roles identified.
Other factors to be considered
The other factors stated in clause 4.60 of the Guidelines relate to matters already considered above or are not relevant to the matters in dispute or to be determined.
DETERMINATION
After consideration of the relevant factors and, on balance, for the period after the second entitlement period, I find that the claimant was not fit to work in any employment reasonably available to him.
The reviewable decision dated 7 June 2024 is therefore set aside with the insurer to re-calculate the claimant’s weekly payments of statutory benefits after the second entitlement period in accordance with this merit review decision.
COSTS
The claimant’s submissions do not seek costs in connection with these proceedings. In any event, such costs are not allowed by the Motor Accident Injuries Regulation 2017 unless there are exceptional circumstances.
In the circumstances, I make no order as to costs.
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