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Accident Compensation Cases

Fitzpatrick v Accident Rehabilitation and Compensation Insurance Corporation (DC, 30/03/00)

Judgment Text

Judge A W Middleton
The appellant who is now aged 52 suffered severe injuries in a motor vehicle accident on 14 January 1981. At that time he was working as a Shearer and had his own shearing gang. In the accident he sustained a crushed right ankle, fractured right fibula and severe head injuries. He was able to return to work approximately eight months after the accident but has suffered from increasing pain in his right ankle with stiffness. As a result of the accident the appellant's current complaints are: 
suffers ongoing pain in his right ankle, which increases with cold, driving small cars (due to the angle of the accelerator), squatting or crouching, weight bearing heavy loads and standing; 
cannot run, squat or crouch; 
suffers from restless sleep due to pain; 
often uses a walking stick and/or ankle-foot-orthosis in winter; 
suffers increased pain when walking for more than ½ an hour; 
has a right leg which is weaker than his left; 
has a decreased range of movement in his right ankle; 
can unbalance on the ankle, especially when on uneven ground; 
suffers from pain in his right hip and knee. ”
In 1989 his permanent disability under section 119 of the Accident Compensation Act 1972 was assessed at 30%. In August 1992, because of deterioration, the assessment was increased to 40%. 
The appellant received weekly compensation until October 1981 when he returned to work. In 1992 the appellant underwent a surgical operation to his right ankle as a result of which he was advised that it was no longer possible for him to return to his employment as a Shearer. It was then that the appellant indicated a preference for a business course in photography rather than a computing course and the respondent financed a two year photography course. The appellant received a Certificate of Design and Visual Arts in 1995. 
In December 1998 the respondent referred the appellant to Work-Ability Otago Limited for a WCAP Occupational Assessment. That assessment, which was issued on 24 December 1998, noted that the appellant was not undergoing any education or training. In so far as his transferable skills were concerned, the Assessor noted that when he was working as a Shearing Contractor he sometimes had three or four gangs of seven men per gang with shed hands operating in the Southland area. He organised various contracts mostly by telephone and organised the Shearers to be present at the various shearing sheds. At the same time he took work with a freezing company. The Assessor considered that as a result of his experience supervising workers he would be able to run a business. It was also noted that he had undertaken two years of training in photography at the Southland Polytechnic which he had successfully finished although the report indicated that he had lost interest in that pursuit. In the result the Assessor concluded that the job options suitable for the appellant would be “Freezing Worker/Slaughter, Butcher, Smallgoods maker, Sales Assistant, Manager Business Operation, Shearer, General Staff Supervisor, Light Truck and Van Driver, General Computer Operator, Photographer, Picture Framer.” The appellant was then referred to Dr B Christian for the Medical Work Capacity Assessment. 
Dr Christian's report dated 6 January 1999 outlined the appellant's current symptoms and noted a desire to carry on with photography and to learn more in that field. In respect of the job options referred to by the Work Capacity Assessor, Dr Christian considered that the appellant would be medically fit for only the positions of Manager Business, Staff Supervisor, Computer Operator, Photographer. Dr Christian did not consider the appellant medically capable of performing the other suggested options. 
On 8 February 1999 the respondent advised the appellant that because he had a capacity to work for 30 hours per week or more and his continued weekly compensation would cease as from 8 May 1999. The appellant applied for a review of that decision. 
In the course of the review hearing, it was submitted on behalf of the appellant that he lacked experience, education and training for the proposed photography position. It was submitted that all his experience and training had been in the areas of shearing, meatworks and butchery, none of which positions he could now undertake. It was submitted further that his training in photography was at a very base level and that in spite of applying to a well known franchise but had been unsuccessful because he was not sufficiently qualified. The appellant submitted further that although he had done relief work for 2 — 3 weeks as a Truck Driver which he was unable to continue because of pain. Dr Christian stated that he should avoid prolonged driving in a car. It was submitted that the appellant has limited literacy skills which deterred him from undertaking work as a Business Manager. The Review Officer concluded that the work capacity procedure had been properly carried out as a result of which the Review Officer concluded that the appellant did not have the capacity to work as a Computer Operator or a Truck Driver but that he had the capacity to work as a Photographer. It is against that decision which the appellant now appeals. 
Ms Watson submitted that it was evident from the medical situation that the appellant's mobility was decreasing and this was confirmed by the lump sum payments made for deterioration in the condition of his ankle. Ms Watson submitted that while it was suggested that the appellant could work as a Business Manager, his role in managing the shearing gangs was merely telephone work, arranging contracts and advising the men where to go while all the paperwork and financial arrangements were left to his Accountant. She also noted the report from Southland Polytechnic of 29 March 1999 which stated: 
“Alan's study ability was limited by his reading and writing skills. These were of a low level and severely restricted the quality and potential of what he was able to achieve. He, for example, failed to complete colour processing theory exams to the required standard due to this poor standard. ”
The report then went on to suggest that the appellant was not ready to enter into commercial photography and that if he attempted to do so it “would probably result in costly failure.” She submitted that in a SPELD assessment report made in 29 April 1999 it was noted that “Allen would benefit from a period of intensive individual tuition with a programme catering for his specific needs.” The report also noted that “Allen's written work also suffers because of his spelling and other visual problems.” Ms Watson submitted that based on the recommendations in the SPELD report it was necessary for the appellant to overcome the barriers identified there before he would be able to enter into any form of occupation. 
Mr Hunt submitted that it was clear from the appellant's background in the freezing works and in particular as Manager of shearing gangs that he had managerial skills which would be transferable in the general workplace. He submitted further that the occupational assessment indicated that the appellant could cope with they physical demands of photography and that this was supported by the fact that he had obtained reasonable results at the Southland Polytechnic. 
The work capacity procedure has been published as required by section 51 of the Act. I am satisfied that in this case the procedure carried by the respondent was carried out in accordance with the guidelines of the procedure as published in the Gazette and which came into force in 1997. Notwithstanding that, I have a concern that a 52 year old man suffering from the disabilities to which I have referred and which appear to be increasing as time goes by, has been assessed as being capable of working at least 30 hours per week in a photography business. The appellant has had very little education and has particular difficulty in spelling as highlighted in the SPELD report. I do not accept Mr Hunt's submission that because he had had the experience of managing shearing gangs he was therefore capable of transferring that managerial skill to other jobs requiring management. That work was of a limited nature and serious managerial responsibilities were undertaken by the appellant's account. I consider that the appellant's limited spelling and visual problems would constitute a serious barrier to an appointment as a Manager. 
The whole of the evidence indicates to me that this appellant suffers serious lack of skills because of a deficit of proper education. He has certainly been able to obtain full time proactive work in his chosen fields in the meat industry and shearing up to the time of his accident but he has now gone past that. The medical evidence indicates that he cannot go into any of those occupations and the only possible avenue is photography for which he has received some initial education. However, the report from Southland Polytechnic, again, raises doubts as to the appellant's ability to become involved in the photography business, particularly because of his limited reading and writing skills which according to the report it needs further development. 
My concern is that as the legislation requires the respondent and this Court to accept the assessments made by the duly qualified and appointed Assessors I do not consider that the Court has the power to overturn their respective findings. The respondent was bound to accept those findings which it did when it issued its decision cancelling further weekly payments. My concern is that the restrictions imposed by the legislation means that the decision in this case creates an injustice to this appellant whom I do not consider has the capacity for work within the definition. However, as I have said, I consider that both the respondent and this Court are required by the legislation to accept the assessments made in accordance with the requirements of the Act and accordingly the appeal must be dismissed. 

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